Ebook Democratization and the judiciary: The accountability function of courts in new democracies Part 2

Continued part 1, part 2 of ebook Democratization and the judiciary: The accountability function of courts in new democracies provides readers with contents including: legitimating transformation political resource allocation in the South African constitutional court; the accountability function of the courts in Tanzania and Zambia; renegotiating ‘law and order’ judicial reform and citizen responses in postwar guatemala; economic... Đề tài Hoàn thiện công tác quản trị nhân sự tại Công ty TNHH Mộc Khải Tuyên được nghiên cứu nhằm giúp công ty TNHH Mộc Khải Tuyên làm rõ được thực trạng công tác quản trị nhân sự trong công ty như thế nào từ đó đề ra các giải pháp giúp công ty hoàn thiện công tác quản trị nhân sự tốt hơn trong thời gian tới.

Legitimating Transformation: Political Resource Allocation

in the South African Constitutional Court

THEUNIS ROUX

Introduction

Some degree of judicial intervention in politics is an inevitable consequence of the adoption of a

supreme-law Bill of Rights The political branches’ power to allocate resources, however, is conventionally thought

to be beyond ‘the limits of adjudication’.1 Judges, the standard argument runs, are neither mandated nor

institutionally equipped to undertake the complex economic and interest-balancing inquiries that inform the

allocation of public resources It is therefore unwise to give them the power to review decisions taken by the

political branches in this area, and foolish for judges to assume this power when they are not compelled to

do so

If these propositions are true for judges in mature democracies, one would expect that they would apply

with even greater force in new democracies, where the judicial branch is by defmition still in the process of

building the legitimacy required to play a meaningful role in politics It is therefore surprising that some of

the most far-reaching decisions in this area have been handed down by courts in Hungary and South Africa

—both countries that democratized within the last 15 years It is even more surprising that, in the case of

South Africa, judicial review of political resource allocation has not as yet triggered any significant protest

from the executive.2 Why has this happened? And what does the South African experience tell us about the

capacity of courts to check the power of the political branches in new democracies?

This study attempts to throw some light on these questions by examining four recent decisions of the

South African Constitutional Court in which it was required to review the allocation of resources by the

political branches The first case took the form of a socio-economic rights claim, that is a claim based on a

right to a particular resource or distribution of public benefits And, indeed, it is in this context that the judicial

review of political resource allocation is most obviously implicated But the issue has arisen in other

contexts as well, most notably in relation to constitutional challenges to legislation or policies allocating

resources away from the claimant The other cases discussed here are all of this type.

The discussion of each case begins with a summary of the formal reasons given by the court for its

decision Thereafter, the purpose is to identify the discretionary gaps exploited by the court in its

manipulation of the applicable legal rules By ‘discretionary gaps’ is meant fissures in the normative

structure governing the decision that enabled the court to fashion an outcome in accordance with its sense of

the degree of intrusion into politics appropriate to the case concerned The aim is thus not to engage in a full

doctrinal analysis of each case, but to focus on the way the court has used the opportunities presented to it in

these cases to define its institutional role in the South African political system

This way of proceeding brings together two bodies of literature on the role of constitutional courts in new

democracies that seem to depart from different premises On the one hand, political science discussions of

this issue tend to assume that courts have a fairly wide discretion to tailor the outcome of controversial

cases to the exigencies of the political moment.3 On the other hand, legal academics writing about such

cases, certainly in South Africa,4 are reluctant to admit that extraneous political factors exert any kind of

influence at all on the way judges make their decisions The approach taken here lies somewhere in between

Legal rules do constrain the exercise of judicial discretion in controversial cases However, by exploiting

ambiguities in the normative structure governing their decisions, courts are able to manage their relationship

with the political branches to a considerable degree

The South African Constitutional Court has shown itself to be particularly adept at this kind of strategic

behaviour, using the space provided by the new constitutional order to good effect In particular, the four

cases discussed in this article suggest that the court is scripting a role for itself as legitimator of the

post-apartheid social transformation project The advantage of this role is that it has allowed the court to build its

legitimacy by endorsing the political branches’ social transformation efforts At the same time, the court has

been able to give meaningful effect to the Bill of Rights, whilst remaining respectful of the political

branches’ residual prerogative to determine public policy

Before discussing the cases, it may be helpful to readers unfamiliar with the South African constitution,

and who wish to compare South Africa to other democracies discussed in this collection, to make some

introductory remarks about the composition, method of selection and workload of the Constitutional Court

Although the South African case is undoubtedly significant, it may not be completely generalizable to other

new democracies because of these peculiar institutional factors

The Composition, Method of Selection and Workload of the South African

Constitutional Court

The Constitutional Court was established in 1994 under the so-called interim constitution,5 an expressly

transitional constitution that facilitated South Africa’s passage from white minority rule to non-racial

democracy One of the more unusual aspects of the interim constitution was the role it gave to the court in

certifying the final constitution6 against a set of negotiated principles This device, a clear pragmatic

compromise between the desire for democracy and the need to keep the transition on track, necessarily

thrust the court into the centre of politics Its decision on this issue,7 approving the bulk of the final

constitution but remitting several important questions for reconsideration by the Constitutional Assembly,

provided an early indication of the court’s astute approach to controversial cases

If one were to isolate a single non-contingent factor to explain the court’s success in building its

legitimacy, it would be that the court is composed of a remarkably talented group of people, all of whom

possess impeccable human rights credentials.8 Of the original eleven judges appointed, eight were still

sitting at the beginning of 2003 When one considers that two of the vacancies were created by ill health,

this statistic reflects a high degree of stability in the composition of the court This has allowed it to build its

relationship with the political branches through a series of cases in which it has largely spoken with one

voice.9

The judges of the court are appointed by a Judicial Services Commission, which is effectively controlled

by the majority party in the national government.10 Given that South Africa is a one-party dominant state,11

this might appear to be a reason for doubting the independence of the court However, even in mature

democracies, the national executive typically has the power to appoint a majority of the highest court on

constitutional matters.12 Few constitutional courts in the world are independent in the strict sense—

composed of people with political views opposed to that of the governing political elite Indeed,

constitutional courts of this type, if they existed at all, would be at a distinct disadvantage when checking

the power of the executive, since their decisions would be open to the charge of political bias Conversely,

as the South African case illustrates, the fact that a court’s members have political views broadly

sympathetic to those of the governing elite may be a necessary condition for them to assert their

independence in the narrow sense: the capacity on occasion to say ‘no’ to the executive and ‘make it stick’

The other peculiar feature of the South African Constitutional Court worth mentioning is that it decides a

comparatively small number of cases per year—never more than 30, and in some years as few as 20.13 This

is both an advantage and a disadvantage The advantage of a low workload is that the court is able to pay

close attention to the wording of its decisions, using them as the main means by which to manage its

relationship to the political branches The disadvantage, on the other hand, is that the court has

concomitantly less control over its docket This is compounded by the final constitution’s very broadly framed

jurisdictional provisions,14 which have thus far precluded the development of a political question doctrine

on the American model.15 Deprived of this device, the court has very little option but to accept jurisdiction

over controversial cases,16 and then to use all its considerable rhetorical skills, both to avoid deciding issues

that might bring it into conflict with the political branches,17 and to take on politically useful issues that

might not present themselves for decision again

Discussion of the Cases

Government of the Republic of South Africa v Grootboom

In the first major socio-economic rights case to come before the Constitutional Court—Government of the

Republic of South Africa and Others v Grootboom and Others18—a homeless community challenged their

local municipality’s refusal to provide them with temporary shelter In a decision that has already attracted

some international interest,19 the court held that the state’s failure to make proper provision for people in

desperate need violated its obligation under section 26(1) and (2) of the final constitution to ‘take

reasonable and other measures within its available resources’ to provide access to adequate housing It

accordingly declared the state’s housing programme as applied in the municipal area in question

unconstitutional to this extent.20

At first blush, this decision appears to be a remarkable slap in the face of a government that has made

great strides in a short time to redress the apartheid housing-backlog Closer examination of the reasons for

the decision, however, reveals a diplomatically worded and respectful message to the political branches,

generally endorsing their efforts, even as the court finds fault with aspects of the national housing

programme

The key discretionary gap exploited by the court in Grootboom was the ambiguity surrounding the

application of international law, in particular, General Comment 3 of 1990 issued by the United Nations

Committee on Economic, Social and Cultural Rights Paragraph 10 of this Comment interprets articles 2.1

and 11.1 of the International Covenant on Economic, Social and Cultural Rights as meaning that States

Parties have to devote all the resources at their disposal first to satisfy the ‘minimum core content’ of the

right to adequate housing Counsel for the amici curiae in Grootboom had argued strongly that this was the

governing norm, and therefore that the court should order the state to redirect its spending so as to devote

all available resources to meeting the needs of people in the position of the claimant community

Clearly, the adoption of such an approach at the domestic level would have brought the Constitutional

Court into direct confrontation with the political branches, since it would have required the court to

substitute its own view of the needs that ought to be prioritized in the national housing programme for that

of the legislature and the executive Fortunately for the court, however, South Africa has not as yet ratified

the International Covenant on Economic, Social and Cultural Rights.21 And, although section 39(2) of the

final constitution obliges the Court to ‘consider international law’, it clearly does not oblige it to apply

non-incorporated legal norms.22

Taking full advantage of this discretionary gap, the court in Grootboom found that the textual differences

between section 26(1) and (2) of the final constitution and Articles 2.1 and 11.1 of the International

Covenant suggested that ‘the real question…is whether the measures taken by the State to realise the right

afforded by s 26 are reasonable’.23 The minimum core content of the right to have access to adequate

housing, the court held, was only one indicator in respect of this larger inquiry.24 In any event, there was

insufficient evidence before the court to allow it to determine the minimum core content of the right, given

regional variations in housing requirements and the rural/urban divide.25

Having opened out the normative structure governing its decision in this way, the court was able to

develop the reasonableness review standard implied by the text of section 26(1) and (2) unconstrained by

international law, or indeed by foreign law or past precedent The court simply asserted, without relying on

any authority, that the state’s duty under section 26(2) to adopt ‘reasonable and other legislative measures’

implied that the national housing programme must be ‘comprehensive’,26 ‘balanced and flexible’,27 and

targeted at those who were unable to access adequate housing through the market.28 The precise holding in

the Grootboom case, negatively expressed, was that it was unreasonable for the state to ‘exclude’ a

‘significant segment of society’ from the national housing programme,29 especially where such a group was

poor or otherwise vulnerable.30

The court must have been all too well aware, as it handed down this decision, that the standard of review

set in this, its first major socio-economic rights case, would be a crucial determinant of the degree to which

it would be required in future cases to involve itself in controversial policy issues, and in the allocation of

resources in particular It is therefore instructive to compare the standard of review adopted in Grootboom

to the rational basis and proportionality standards in South African constitutional law, which mark

respectively the low and high ends of the continuum of review standards from which the court might have

chosen

To lawyers familiar with the court’s jurisprudence, the reasonableness review standard in Grootboom is

clearly stricter than the rational basis standard applied under section 9(1) of the final constitution.31

Although it insists on means-end rationality as a minimum,32 the requirement that a social programme be

comprehensive, balanced and flexible means that the court must do more than inquire into whether the

legislation or policy at issue is rationally related to a legitimate government purpose Rather, the court has to

assess whether the social programme unreasonably excludes the segment of society to which the claimant

group belongs This assessment is closer to the one the court makes when applying the unfair discrimination

standard it has developed under section 9(3) of the final constitution.33 As such, it undoubtedly requires the

court to substitute its view of what the constitution requires—the inclusion of the excluded group—for that

of the political branches It stops short, however, of a full-blown proportionality test.34 The court’s

assessment is thus not directed at such issues as whether the state might have adopted less restrictive

measures in pursuing the programme in question, but at whether the claimant group has an equal or better

claim to inclusion relative to other groups that have been catered to.

It is now possible to see just how crucial the court’s rejection of the direct application of General

Comment 3 was As noted above, the application of the standard set by the UN Committee on Economic,

Social and Cultural Rights would have required the court to substitute its view of the needs that ought to be

prioritized in the national housing programme for that of the political branches By exploiting the

discretionary gap in relation to the application of international law, the court was able to develop a subtly,

but crucially different review standard, one that is less invasive of the political branches’ resource-allocation

powers in two respects.35 First, the court was careful not to prescribe to the political branches the temporal

order in which competing needs were to be met through the national housing programme By rejecting the

minimum core content argument, the court left the political branches free to meet a number of different

needs in parallel, without prioritizing the needs of the most vulnerable over those who at least have somewhere

to live where they are not in immediate danger of eviction or exposure to the elements

The second important difference between the review standard developed in Grootboom and the standard

set by the UN Committee on Economic, Social and Cultural Rights is that the former standard does not involve

the court in prescribing to the political branches the precise amount of resources that have to be re-allocated

in order to cure the constitutional defect it identifies The court in Grootboom simply held that ‘it is

essential that a reasonable part of the national housing budget be devoted to [providing relief for those in

desperate need], but the precise allocation is for national government to decide in the first instance’.36 If the

political branches were to attempt to give effect to this ruling, they would have to redistribute resources

within the national housing programme, at the expense of people who might have benefited sooner from

that programme but for the court-sanctioned diversion of resources to people in desperate need But the

political branches would not have to ensure that the shelter requirements of people in desperate need were

met first, before going on to meet the needs of people whose situation was less desperate Nor would they

be required to allocate more resources to the housing programme, either by taking resources away from

other programmes or by increasing the overall size of the national budget To this extent, the Grootboom

judgement remains respectful of the political branches' primary budget-setting and policy-making powers

The impact of the reasonableness review standard developed in Grootboom on the political branches'

power to allocate resources was directly addressed in the court's second major decision on socio-economic

rights, Minister of Health and Others v Treatment Action Campaign and Others (No.2).37 In this decision,

the court described the effect of its standard in the following terms: Determinations of reasonableness may

in fact have budgetary implications, but are not in themselves directed at rearranging budgets In this way

the judicial, legislative and executive functions achieve appropriate constitutional balance.38 The distinction

the court draws in this passage between, on the one hand, the deliberate usurpation of the political branches’

resource allocation powers and, on the other, the inevitable budgetary consequences of a determination of

reasonableness, is very revealing about how it sees its institutional role The former conception, the court

implies, would amount to an unacceptable intrusion into politics, whereas the latter is just an inevitable

consequence of the function given to the court by the constitution Judicial motives, in other words, are

important If the motive for ‘rearranging budgets’ is to substitute the court's view on how resources should

be allocated for that of the political branches, the intrusion into politics cannot be justified However, if the

primary motive is rights-enforcement, the political branches should (as a matter of constitutional law) and will

(as a matter of practical politics) accept the resource-allocation effects of the court’s decision as a necessary

part of the constitutional compact

Pretoria City Council v Walker

Socio-economic rights claims, as illustrated by the Grootboom case, generally have to do with challenges to

the way resources have been allocated in existing programmes, and a concomitant claim that resources be

diverted to the claimant The remaining cases discussed here all concerned challenges to legislative or

executive action that had the effect of allocating resources away from the claimant The first such case,

Pretoria City Council v Walker,39 provides a good illustration of the role that the Constitutional Court is

beginning to define for itself in relation to challenges of this type The respondent had been sued in the

Magistrate’s Court for outstanding electricity and water charges owed to the applicant, the Pretoria City

Council In defence to this suit, the respondent argued that the council’s policy of charging a

consumption-based tariff in formerly white suburbs and a lower, flat rate in formerly black townships amounted to

cross-subsidization of the latter group by the former As such, the policy violated section 8 of the interim

constitution (the right to equality).40 The respondent further alleged that the council’s practice of taking

legal action to recover debt owed by residents of the formerly white suburbs whilst declining to sue

residents of the formerly black suburbs similarly violated this section

Section 8 of the interim constitution, which is substantially the same as section 9 of the final constitution,

has been interpreted as entailing two separate, but related standards of review: a rational basis standard

linked to section 8(1), and an unfair discrimination standard linked to section 8(2) The first standard amounts

to the familiar, means-end rationality test applied in other jurisdictions In terms of this test, the court’s inquiry

is limited to deciding whether the provision or conduct complained of serves a legitimate government purpose

and, if so, whether the differentiation at issue is rationally connected to that purpose In Walker the

application of this standard took up just two sentences of what is otherwise a fairly lengthy judgement, the

court finding that the measures complained of were temporary in nature, and were rationally connected to

the legitimate purpose of achieving parity in municipal service provision.41

The second, unfair discrimination standard, applied under section 8(2) of the interim constitution and

section 9(3) of the final constitution, is more complicated It is most concisely expressed in the court’s decision

in Harksen v Lane N.O and Others,42 where the two-stage enquiry into whether an impugned

differentiation amounts to unfair discrimination is explained as follows:43

(i) Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then

discrimination will have been established If it is not on a specified ground, then whether or not there is

discrimination will depend upon whether, objectively, the ground is based on attributes and

characteristics which have the potential to impair the fundamental human dignity of persons as human

beings or to affect them adversely in a comparably serious manner

(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it has

been found to have been on a specified ground, then unfairness will be presumed If on an unspecified

ground, unfairness will have to be established by the complainant The test of unfairness focuses

primarily on the impact of the discrimination on the complainant and others in his or her situation

Applying this standard in Walker, the majority of the court held that the council’s policy of charging

different tariffs to residents of formerly white and formerly black areas, and of selectively suing residents of

formerly white areas for the recovery of arrears, amounted to indirect discrimination on the basis of race.44

Since race was one of the grounds expressly listed in section 8(2), this finding triggered the presumption in

section 8(4) that the discrimination was unfair.45 The major portion of the court’s judgement is accordingly

directed at assessing whether the council had successfully rebutted this presumption, namely whether it had

proved that, even though its policy of charging differential tariffs and its practice of suing only residents of

the formerly white suburbs indirectly discriminated on the basis of race, they were nevertheless fair.46

The unfair discrimination standard developed in its previous decisions required the court in Walker to

focus on the impact of the discrimination on the complainant, taking into account three factors: (1) his or

her position in society; (2) ‘the nature of the provision or power and the purpose sought to be achieved by

it’; and (3) ‘the extent to which the discrimination has affected the [complainant’s] rights or interests…and

whether it has led to an impairment of [his or her] fundamental human dignity or constitutes an impairment

of a comparably serious nature’.47 In Walker, the court added for the first time that the complainant need

not prove that the state intended to discriminate,48 although the absence of an intention to discriminate was

relevant to the court’s assessment of the second factor.49

Assessing these factors, the court found that the council’s differential tariff policy did not amount to

unfair discrimination The issues that the court considered relevant were: (1) that the complainant was a

member of a previously advantaged, though minority group;50 (2) ‘the adoption of a flat rate [in formerly

black townships] as an interim arrangement while meters were being installed…was the only practical

solution to the problem’;51 (3) the inevitability of cross-subsidization;52 and (4) the fact that the policy ‘did

not impact adversely on the respondent in any material way’.53 The practice of selectively proceeding

against residents of the formerly white suburbs, on the other hand, was not based on a ‘rational and coherent

plan’,54 but was rather a pragmatic way of dealing with the culture of non-payment in formerly black

suburbs.55 Official Council policy was in fact to enforce the payment of arrears by way of legal action against

all ratepayers.56 When coupled with the fact that, ‘objectively’, this practice affected the complainant and

‘other persons similarly placed’ in a manner ‘comparably serious to the invasion of their dignity’,57 the

presumption that this practice was unfairly discriminatory could not be said to have been rebutted

What is significant about the majority judgement in Walker for our purposes is that the court was able to

enter the politically charged terrain of municipal service provision and partially strike down a policy that

favoured the previously disadvantaged majority over a still privileged minority How did the court achieve

this result without antagonizing the political branches?

First, it was perhaps not coincidental that Walker was the case in which the court chose to decide the

question whether proof of an intention to discriminate on the part of the state is a necessary element of a

successful unfair discrimination challenge Although courts in the mature democracies cited by the court

have taken different views on this question,58 in a new democracy it is clearly preferable for judges not to

have to rule on the motives underlying impugned executive conduct

The second possible explanation for the apparent ease with which the court was able to hand down a

judgement in Walker partially striking down a policy that favoured the previously disadvantaged majority,

lies in the fortuitous fact that the case split into two parts This allowed the court to uphold the differential

tariff policy whilst sanctioning the practice of selective enforcement In this way the court was able to

balance its role as guardian of the constitution against the need to build its institutional legitimacy It is also

significant that the practice of selective enforcement did not enjoy the status of official policy, which meant

that the court could attack it as irrational and incoherent without directly criticizing the political branches

The third discretionary gap exploited by the court in Walker concerned the application of the unfair

discrimination test As noted above, where the ground of discrimination is listed in section 8(2) of the

interim constitution, as it was in this case,59 the formalistic enquiry prescribed by the Harksen case leaves

very little room for manoeuvre until the final stage, in which the court assesses whether the state has

rebutted the presumption of unfair discrimination thus arising.60 At this point, however, the inquiry becomes

quite open-ended As the majority judgement in Walker shows, the third factor in the determination of

fairness—the assessment of whether the impact of the conduct complained of is as serious as an invasion of

the complainant’s dignity—still leaves quite a bit of space for the court to exercise its political discretion

To understand this point it is necessary to return to the facts of the case On the court’s own version, it is

apparent that the constitutional claimant (Walker) was not indebted to the council because of his inability to

pay Rather he was part of a concerned taxpayers’ association that was attempting to highlight the way in

which the council charged for services by refusing to pay any more for services than the flat rate charged to

black residents.61 Indeed, it is fair to say that Walker deliberately exposed himself to the possibility of being

sued so that he could draw attention to the alleged violation of his constitutional rights Against this

background, the majority’s conclusion that the impact of the council’s practice of selectively suing white

residents must have ‘affected them in a manner which [was] at least comparably serious to an invasion of

their dignity’62 seems a little strained There was no principled basis for distinguishing the council’s

differential tariff policy from the practice of selective enforcement according to this factor If anything, the

impact of the tariff policy was outside Walker’s control, whereas he might have avoided the impact of the

selective enforcement practice by settling his arrears, something that he was financially capable of doing

The real reason for the court’s willingness to find for Walker on the latter issue, it is suggested, was its

desire to sanction the haphazard way in which the council went about recovering arrear charges.63 This

comes closer to a finding of irrationality than one of unfair discrimination Indeed, it is at first glance

strange that the court did not use the opportunity provided by the section 8(1) rational basis challenge to

strike down the practice of selective enforcement, and in that way avoid the more controversial finding of

unfair (reverse) discrimination under section 8(2).64 As the two cases discussed below illustrate, the court is

far more comfortable in the role of enforcing good governance standards than it is in second-guessing the

wisdom of policies self-evidently required to redress the legacy of apartheid

The only plausible explanation for the court’s becoming more embroiled in the politically fraught terrain

of municipal service provision than was doctrinally necessary is that it deliberately chose to enter this

terrain in order to endorse the political branches’ social reform efforts Had the court decided the case

merely on the basis of section 8(1), it would have had far less scope to affirm the constitutionality of such

crucial transformational strategies as cross-subsidization, and far less opportunity to show its appreciation

for the difficulties faced by the council in trying to achieve parity in municipal service provision On

balance, the checking effect of the court’s decision to strike down the practice of selective enforcement is

outweighed by the ringing endorsement it gives to the post-apartheid social transformation project In this way

the court was able to legitimate that project even as it affirmed the minority-protection function of the Bill of

Rights

Premier, Mpumalanga v Executive Committee, Association of State-aided Schools,

Eastern Transvaal

Consequent on the inclusion of rights to administrative justice in both the interim and final constitutions, the

Constitutional Court has on several occasions been required to review the constitutionality of administrative

action in cases that in other jurisdictions would have been decided by the ordinary courts The fact that a

constitutional court should review administrative action does not, of course, render this widely accepted

institution problematic However, two further features of the South African situation warrant the inclusion of

some of these cases in this analysis The first feature involves the Constitutional Court’s approach to the

definition of administrative action, which, as in some other jurisdictions, has focused not on the ‘arm of

government to which the relevant actor belongs, but on the nature of the power he or she is exercising’.65 As

a result, the constitutional right to just administrative action has on several occasions been used to challenge

decisions taken by ministers in the national and provincial governments, including decisions on the

allocation of resources The second feature of the South African situation is the enormity of the social

transformation challenge facing the country, and the steadfastly legal framework within which the political

branches have pursued the social transformation project In combination, these two features mean that

judicial review of political resource allocation under the right to just administrative action may pose as great

a risk to the court’s reputation and standing as that posed by judicial review in respect of socio-economic or

equality rights Even as apparently routine a review standard as procedural fairness may, if over-zealously

applied, be perceived by the executive as undermining the achievement of the constitutional vision of a just

and substantively equal society By the same token, however, the judicious use of the court’s power to

review political resource allocation for procedural fairness may serve to legitimate the redistribution of

resources by the political branches, which is a necessary part of the post-apartheid social transformation

project

The Constitutional Court indicated its awareness of this tension in the following extract from its decision

in Premier, Mpumalanga, and Another v Executive Committee, Association of State-aided Schools, Eastern

Transvaal.66

In determining what constitutes procedural fairness in a given case, a court should be slow to impose

obligations upon government which will inhibit its ability to make and implement policy effectively

(a principle well recognised in our common law and that of other countries.) As a young democracy

facing immense challenges of transformation, we cannot deny the importance of the need to ensure

the ability of the Executive to act efficiently and promptly

The Premier, Mpumalanga case concerned a challenge to a decision by a provincial education minister

terminating bursaries paid to needy students in state-aided schools The policy change was motivated by a

well-founded desire to eliminate racial discrimination in the system However, in his budget speech for the

year in question, the minister had failed to indicate that existing, racially-based bursaries would be

withdrawn in that year.67 Thereafter, at a public meeting, he announced the termination of all existing

bursaries with retroactive effect.68

The respondent, an association of formerly white schools, some of whose pupils were adversely affected

by this decision, challenged it as a violation of section 24(b) of the interim constitution (right to

procedurally fair administrative action) The trial court set aside the decision and substituted it with a

decision that existing bursaries should be paid until the end of the school year On appeal to the

Constitutional Court, the decision to terminate the bursaries was assumed to constitute administrative action,

notwithstanding a clear acceptance later on in the judgement (in relation to an allegation of bias) that it was

‘a political decision…taken in the light of a range of considerations’ by ‘a duly elected politician’.69 Finding

that the respondent had a legitimate expectation that bursaries would be paid until the end of the school

year, the court held that the decision to terminate the bursaries with retroactive effect without affording the

respondent’s members a hearing was unconstitutional against section 24(b)

The first part of the court’s interpretation of the procedural fairness standard is contained in the passage

quoted above The emphasis in that passage falls squarely on the need to permit the executive to act

‘efficiently and promptly’ The emphasis shifts as the court continues:

On the other hand, to permit the implementation of retroactive decisions without, for example,

affording parties an effective opportunity to make representations would flout another important

principle, that of procedural fairness…Citizens are entitled to expect that government policy will not

ordinarily be altered in ways which would threaten or harm their rights or legitimate expectations

without their being given reasonable notice of the proposed change or an opportunity to make

representations to the decision-maker.70

The balance that the court strikes in these two extracts between the need to promote ‘prompt’, ‘efficient’

and ‘effective’ government, and the need to ensure respect for due process is a familiar refrain in many

countries, including mature democracies What is remarkable about this passage, however, is that the court

assigns to itself both a passive and an active role in the striking of this balance Note, for example, the subtle

shift in the first extract from the need not to ‘inhibit [the executive’s] ability to make and implement policy

effectively’ to ‘the need to ensure the ability of the Executive to act efficiently and promptly’ (emphasis

added) Similarly, in the second extract, the court’s reluctance ‘to permit the implementation of retroactive

decisions’ is justified by the need to enforce procedural rights As it did in the Walker decision, the court is

here defining a role for itself as legitimator of the social transformation project According to this

conception of its role, the function performed by the court is neither that of passive watchdog nor that of

active champion of citizens’ rights against the state Rather, the political context in which it is operating

requires the court to work alongside the democratically elected government to consolidate the transition

from apartheid to democracy

Permanent Secretary, Department of Education and Welfare, Eastern Cape and Another

v Ed-U-College (PE) (Section 21) Inc.

The court’s self-understanding as legitimator of the political branches’ social transformation project is also

evident in another case in which it was required to apply the procedural fairness standard to political

resource allocation The facts in Permanent Secretary, Department of Education and Welfare, Eastern Cape

and Another v Ed-U-College (PE) (Section 21) Inc71 were almost identical to those in Premier,

Mpumalanga As in that case, the claimant challenged a provincial education department policy reducing

the subsidies paid to schools, in this instance, independent schools.72 The crucial difference between the

Premier, Mpumalanga and Ed-U-College cases, however, was that the reduction in benefits in the latter

instance had not been effected retroactively Rather, it had followed by necessary implication from a

reduced allocation to independent schools in the provincial education budget This allocation had in turn

been approved by the provincial legislature in its annual Appropriation Act In all, three allocations were at

issue in Ed-U-College: (1) the share of the provincial budget allocated to education; (2) the percentage

allocation to independent schools; and (3) the allocation made to each independent school in terms of a subsidy

formula determined by the minister

The trial court had held that the first two allocations constituted legislative action, and were therefore not

justiciable, at least in so far as the challenge had been brought under the right to just administrative action.

However, the third allocation ‘was a justiciable matter over which the… Court had jurisdiction’.73 On appeal

to the Constitutional Court, the applicants—the permanent secretary for the provincial education

department and the provincial education minister—argued that the allocation of resources to independent

schools was in its entirety ‘a matter of policy, taken [sic] by an elected person, after due deliberation’.74 The

court rejected this argument The first two allocations, it held, were both clearly legislative in character—

the first because the actual amount allocated to education was listed in a schedule to the Appropriation

Bill,75 and the second because the estimated expenditure on each educational sub-programme had been

considered by the legislature when approving the Bill.76 The third allocation was harder to classify

Although the minister’s decision determining the subsidy formula purported to be a decision about how the

budget allocated to independent schools should be distributed, it also conclusively determined the amount

that each school should receive.77 This fact, the court held, was decisive It meant that the minister’s conduct

amounted to the implementation of legislation, rather than the formulation of policy As such, it was subject

to review as administrative action, notwithstanding the fact that the minister was a senior member of the

provincial executive.78

This finding effectively concluded the Constitutional Court’s role in the case, since the appeal had been

taken to it before evidence had been led on the procedure that had been followed by the minister prior to

determining the subsidy formula Nevertheless, the court took the opportunity presented to it in

Ed-U-College to comment on the procedural fairness standard articulated in Premier, Mpumalanga, as follows:

Procedural fairness will not require that a right to a hearing be given to all affected persons simply

because a decision is to be taken which has the effect of reducing the amount of the annual subsidy to

be paid Subsidies are paid annually and, given the precarious financial circumstances of education

departments at present, schools and parents cannot assume, in the absence of any undertaking or promise

by an education department, that subsidies will always continue to be paid at the rate previously

established or that they should be afforded a hearing should subsidies have to be reduced because the

legislature has reduced the amount allocated for distribution.79

As before, this passage reflects the court’s striving for a balance between the need to enforce procedural

rights and the need to promote efficient government The primary distributional choice determining the

amount to be allocated towards school subsidies in any particular year, the court makes clear, is within the

preserve of the legislature However, to the extent that the political branches, by their conduct, create a

legitimate expectation that subsidies will not be reduced or withdrawn in any particular year without a prior

hearing, the court will enforce citizens’ rights to participate in any interstitial change in policy

Once again, the court is here scripting a role for itself as legitimator of the social transformation project—

endorsing the political branches’ power to redistribute resources along more equitable lines, but indicating

its preparedness to strike down poorly conceived policies that infringe on procedural rights

Conclusion

The four cases discussed in this article indicate that, rather than abdicating responsibility for the

transformation of South Africa from a racially divided and deeply unequal society to one in which resources

are more rationally and fairly distributed, the Constitutional Court has chosen to put itself at the centre of

that project In Grootboom, the court developed a review standard that allowed it to engage the political

branches in rational discussion over the fairness of the national housing programme, without, however,

setting government’s priorities for it In Walker, the court appears to have deliberately elected to decide the

constitutional challenge on a potentially controversial basis in order to give its stamp of approval to the

restructuring of the municipal services sector And in the Premier, Mpumalanga and Ed-U-College cases

the court, without being required to do so, was at pains to express its appreciation for the balance that

needed to be struck between the redistribution of resources in the education sector and respect for procedural

rights

All four of these cases involved constitutional challenges to the allocation of resources, an area of public

policy that conventional wisdom dictates should be left to the political branches Notwithstanding the

possible threat to its legitimacy posed by involvement in these types of cases, and the considerable

difficulties associated with reviewing the complex policy choices at issue, the court has entered this terrain

with a remarkable degree of success In so doing, it has scripted a role for itself as legitimator of the political

branches’ social transformation project, a role that simultaneously allows it to build its legitimacy even as it

intrudes into one of the most sacrosanct areas of politics

If that is an accurate assessment, the record of the Constitutional Court in these four cases confirms Ruti

Teitel’s insight that, ‘during periods of political upheaval’, the rule of law, ‘rather than grounding legal order,

… serves to mediate the normative shift in justice that characterizes these extraordinary periods’.80

Although this remark was made primarily in relation to countries in transition, it applies equally well to new

democracies Constitutional courts in this context, it would seem, cannot afford the luxury of the separation

of powers doctrine The consolidation of democracy after a long period of authoritarianism depends on the

ability of the political branches to make law-governed social transformation work If the social

transformation project is to succeed, it must in turn be legitimated by law Counter-intuitively, this means

that judges in new democracies may have to intrude further into politics than their colleagues in mature

democracies would deem necessary or prudent In so doing, they run the risk that the political branches may

become disaffected However, if skilfully handled, intruding into politics may also become the means by

which constitutional courts in new democracies build the institutional legitimacy required to survive, and

eventually to assist in the consolidation of democracy

ACKNOWLEDGEMENTThe author thanks Sandra Liebenberg, Siri Gloppen, David Bilchitz, Jonathan Klaaren, Stuart Wilson and

Anne Chandler for comments on an earlier version

NOTES

1 The term was coined by Lon L.Fuller in ‘The Forms and Limits of Adjudication’, Harvard Law Review, Vol.92,

No.2 (1978), pp.394–404.

2 The only decision to have elicited a hostile response from the executive to date was that of the trial court in

Treatment Action Campaign and Others v Minister of Health and Others 2002 (4) BCLR 356 (T) (ordering the

state to extend its programme for the prevention of mother-to-child transmission of HIV/AIDS) When asked on national television whether the government would implement the court’s order if confirmed by the Constitutional Court, the Minister of Health unequivocally said ‘no’ She was, however, quickly forced to retract this remark.

And, when the Constitutional Court eventually did approve the trial court’s order in substantially the same form

(Minister of Health and Others v Treatment Action Campaign and Others (No.2) 2002 (5) SA 721 (CC)), the

executive did not publicly question it.

3 See, for example, Lee Epstein, Olga Shvetsova and Jack Knight, ‘The Role of Constitutional Courts in the

Establishment of Democratic Systems of Government’, Law and Society Review Vol.35, No.1 (2001), pp.117–63

(attempting to model the strategic calculations made by the Russian Constitutional Court in relation to politically controversial decisions).

4 For a rare exception, see Thomas J.Bollyky, ‘R if C>B: A Paradigm for Judicial Remedies of Socio-Economic

Rights Violations’, South African Journal on Human Rights Vol.18, No.2 (2002), p.165 (arguing that ‘when

remedying a violation of the Bill of Rights, courts intuitively weigh the degree to which they must make choices regarding policies and budgets against the extent of the constitutional violation’).

5 Constitution of the Republic of South Africa Act 200 of 1993 (‘the interim constitution’).

6 Constitution of the Republic of South Africa Act 108 of 1996 (‘the final Constitution’).

7 Ex parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of

South Africa, 1996 1996 (4) SA 744 (CC).

8 Short biographies of the sitting and former judges are available at <http://www concourt.gov.za>.

9 Complete statistics on the record of the South African Constitutional Court, including voting patterns, are

published each year in the South African Journal on Human Rights.

10 Section 178 (1) of the constitution provides for the appointment of 23 people to serve on the Judicial Service

Commission, including 12 whose appointment is directly controlled by the ruling party.

11 See Hermann Giliomee and Charles Simkins, ‘The Dominant Party Regimes of South Africa, Mexico, Taiwan

and Malaysia: A Comparative Assessment’, in Hermann Giliomee and Charles Simkins (eds), The Awkward

Embrace: One-party Domination and Democracy (Cape Town: Tafelberg, 1999), pp.1–45.

12 See Robert A.Dahl, ‘Decision-making in a Democracy: The Supreme Court as a National Policy-maker’, Journal

of Public Law, Vol.6, No.2 (1957), pp.285–6 (demonstrating, through an examination of the interval between

appointments to the United States Supreme Court, that presidents of the United States have generally been able to appoint a majority of judges who share their political views within their first term of office).

13 See note 8 above.

14 Section 2 of the final constitution provides that ‘law or conduct inconsistent with it is invalid’ (emphasis added),

while section 167(7) provides that ‘a constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution’, and section 167(1) (c) provides that the Constitutional Court

‘makes the final decision whether a matter is a constitutional matter’ In theory, this gives the Court the power to review the constitutionality of all executive conduct, including conduct that would in other jurisdictions be regarded as purely political.

15 See Maurice Finkelstein, ‘Judicial Self-Limitation’, Harvard Law Review, Vol.37, No.3 (1924), pp.338–64 and

Louis Henkin, ‘Is There a “Political Question” Doctrine?’, Yale Law Journal, Vol.85, No.5 (1976), pp.597–625.

16 The only exception to this rule concerns applications for direct access in terms of section 167(6) (a) of the final

constitution, where the court has been more circumspect.

17 Cf Iain Currie, ‘Judicious Avoidance’, South African Journal on Human Rights, Vol.15, No.2 (1999), pp.138–65.

My approach in this article is both narrower and broader than that of Currie inasmuch as I am only interested in cases dealing with political resource allocation, whilst at the same time arguing that the court has sometimes deliberately taken on issues that it might have avoided.

18 2001(1) SA 46 (CC) (hereafter ‘Grootboom’) The trial court decision is reported as Grootboom and Others v.

Oostenberg Municipality and Others 2000(3) 277 BCLR (C).

19 See Cass R.Sunstein, ‘Social and Economic Rights? Lessons from South Africa’, Constitutional Forum, Vol.11,

No.4 (2001), pp.123–32.

20 Grootboom par.99.

21 Grootboom par.27 n.29.

22 See sections 231–3 3 of the final constitution, providing for the incorporation of international agreements into

domestic law through enactment ‘by national legislation’ (section 231(4)) and specifying that both international agreements and customary international law, in order to constitute ‘law in the Republic’, must be consistent with the constitution or an Act of Parliament (section 232).

23 Grootboom par.33.

24 Ibid.

25 Ibid paras 32–3.

26 See ibid par.40 Comprehensiveness has three different senses in Grootboom: geographic coverage (par.54);

effective co-ordination of government action at all levels (par.55); and inclusion of all classes in the relevant programme (paras 63 and 64) The national housing programme was found to be lacking only in the third sense.

27 Ibid par.43.

28 Ibid par.36.

29 See Grootboom par.43: ‘A programme that excludes a significant segment of society cannot be said to be

reasonable’.

30 See Grootboom paras 36, 63–5, 69.

31 See Bel Porto School Governing Body and Others v Premier of the Province, Western Cape and Another 2002(9)

BCLR 891 (CC) par.46 (holding that the Grootboom reasonableness review standard was a ‘higher standard’ than

the review standard applied under section 9(1) of the final constitution)

32 See Grootboom par.54 (finding that the national housing programme was ‘not haphazard’ but ‘systematic').

33 This standard is discussed in detail in the analysis of the Walker case in the next section.

34 This test, which is applied under the general limitations clause in section 36 of the final constitution, empowers

the court to strike down laws that are disproportional in the sense that the state might have achieved its legislative purpose by means less invasive of the right in question This standard is a very strict standard since it permits the

court to substitute its view of a less invasive policy for that of the political branches The court in Grootboom

clearly signalled that its reasonableness review standard was less strict than this when holding that ‘a court

considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent’ (par.41).

35 This argument has been developed at greater length in Theunis Roux, ‘Understanding Grootboom—A Response

to Cass R.Sunstein’, Constitutional Forum, Vol.12, No.2 (2002), pp.41–51.

36 Grootboom par.66.

37 2002(5) SA 721 (CC) (hereafter ‘the TAC case’).

38 Ibid par.38.

39 1998(2) SA 363 (CC) (hereafter ‘Walker’).

40 Section 8 of the interim constitution provides: ‘(1) Every person shall have the right to equality before the law

and to equal protection of the law (2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language….’

41 Walker par.27.

42 1998(1) SA 300 (CC).

43 Ibid par.54.

44 Ibid par.32 Both section 8(2) of the interim constitution and section 9(3) of the final constitution prohibit the

state from discriminating ‘directly or indirectly’ Judge Sachs’s dissenting judgement in Walker was premised on

a finding that the differentiation at issue was based on ‘objectively determinable characteristics of different geographical areas, and not on race’ (Ibid par.105.)

45 Cf Section 9(5) of the final constitution.

59 Note that Judge Sachs’s dissent was based on a finding that there was no evidence of prima facie discrimination

on a listed ground (Walker par.107).

60 The presumption is contained in section 8(4) of the interim constitution (the provision applied in this case) and

section 9(5) of the final constitution.

61 Walker par.22.

62 Ibid par.81.

63 Ibid par.79.

64 See Cathi Albertyn, ‘Equality’, in M.H.Cheadle, D.M.Davis and N.R.L.Haysom, South African Constitutional

Law: The Bill of Rights (Durban: Butterworths, 2002), pp.51–121, at p.70 (arguing that the Walker case ‘provides

one of the best examples of a failure to meet the rationality requirement…although it was not decided as such’).

65 President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000(1)

SA 1 (CC) par.141.

66 1999(2) SA 83 (CC) (hereafter ‘Premier, Mpumalanga’).

67 Ibid paras 17–18.

68 Ibid par.22(b).

69 Ibid par.51.

70 Premier, Mpumalanga para 41.

71 2001(2) SA 1 (CC) (hereafter ‘Ed-U-College’).

72 The challenge was brought under section 33(1) of the final constitution, which, like section 24 of the interim

constitution, guarantees the right to procedurally fair administrative action.

73 Ed-U-College par.6.

74 Ibid par.8 (citing the applicants’ notice of appeal).

75 Ibid par.12 The court made it clear that its finding that the first two allocations constituted legislative rather than

administrative action was not necessarily a bar to judicial review under other provisions of the Bill of Rights.

However, the respondent had based its case purely on ‘administrative law principles’ (ibid par.11).

The Accountability Function of the Courts in Tanzania and

Zambia

SIRI GLOPPEN

Introduction

A judiciary with the ability to prevent political power-holders from abusing their powers is widely believed

to be a precondition for good governance and consolidation of a democratic regime The aim of this study is,

first to assess to what extent judges in Tanzania and Zambia play a significant role in holding their governments

accountable Second, it seeks to understand why they perform as they do, and what explains the differences

between the two countries The focus is on the period since 1990, with moves to formal multiparty

democracy, but viewed in the context of judicial developments in these countries since independence

(Tanzania 1961, Zambia 1964).1

The courts’ accountability function refers to their ability to prevent illegitimate use of political power.

Judges contribute to accountable government by requiring power-holders to disclose and justify their

actions and by sanctioning political authorities when they overstep the boundaries for their power as defined

in the constitution, violate basic rights or compromise the democratic process.2 Courts’ accountability

performance depend both on their willingness and ability to say ‘no’ when called for (manifest sanctioning),

and the extent to which their decisions are respected (compliance) and actually influence political behaviour

(latent authority)

To assess the judiciaries’ accountability performance requires a broad contextual analysis of politically

significant cases Have the courts found against the government? If so, what has been the government’s

reaction? Is the court’s authority respected? Focus is particularly on the higher courts and their relationship

with the executive arm of government—the dominant political force in both countries as in most of Africa

Tension between the courts and Parliament is nevertheless relevant as it often involves the executive ‘in

disguise’

In order to explain the judiciaries’ performance, three sets of independent variables are identified: the

legal culture, the institutional structure, and the courts’ social legitimacy

The legal culture, the professional self-understanding and ‘norms of appropriateness’ guiding judges in

their work, influence their accountability performance Of particular importance is the judges’

understanding of what their role should be in a democratic system There is no settled answer to this

question in the literature—scholars offer attractive, competing, views on the proper function of courts in a

democracy.3 Some normative standards for judicial behaviour and independence are widely shared, but

there is no clear ‘benchmark’ to aim for regarding the political role of the courts How do judges in

Tanzania and Zambia conceive their relationship with the other arms of government? Is a deferential

attitude to political power prevalent, advising caution and judicial self-restraint in politically sensitive cases,

or do they favour more assertiveness?

The institutional structure includes the legal framework, regulations and organization of the judiciary, as

well as the financial and professional resources available—factors influencing the courts’ capacity as well

as independence How do institutional and structural factors affect the ability of the Tanzanian and Zambian

courts to perform their accountability function? Important indicators to consider are judicial appointment

procedures, judges’ security of tenure and terms of service, disciplinary mechanisms, budgetary autonomy

and sufficiency of resources—infrastructure as well as jurisprudential resources (legal material, training,

professional forums)

The social legitimacy of the judiciary—their support among important groups in society—is the third

variable believed to impact on the courts’ ability and willingness to stand up to other arms of government

Social legitimacy is partly a function of how the judges are perceived to fulfil their role—whether they are

seen as relevant, competent, fair and independent, or corrupt, self-seeking, incompetent or irrelevant Are

Tanzanian and Zambian courts used by different sectors of society? Are they respected and trusted? Do they

have the social support making it costly for the executive to contravene their decisions or encroach upon their

independence?

Why Compare Tanzania and Zambia?

The two countries are similar in most respects relevant to this analysis: both are poor, aid-dependent,

countries where resource constraints severely affect the administration of justice, and donors carry

significant political influence Their legal systems are marked by the deeply plural nature of these societies

as well as the colonial past British common law lies at the core of the formal legal systems while local

customary law dominates in the lower courts and personal law After independence both turned into

one-party states with pressure on the judiciary to defer to the one-party’s political priorities (just as pre-independence

judiciaries were expected to conform to the priorities of the colonial government)

In Zambia, internal and external pressure brought multiparty elections in 1991 The victorious opposition

—the Movement for Multi-party Democracy (MMD)—has held on to power ever since, partly by

constitutionally controversial means Tanzania moved to a multiparty system through a more gradual and

government-controlled constitutional reform process culminating with multi-party elections in 1995, but

with continued dominance by the Revolutionary Party of Tanzania (CCM) Despite formal multi-party

democracy, both countries continue to see extreme concentration of political power in the ruling party and

the executive president

Given the very similar social and political situation—one where the accountability function of the courts

is particularly crucial as well as exceedingly difficult—even minor differences in the judiciaries’

accountability performance are interesting To understand how they are related to variables in the judges’

institutional and social predicament is relevant both from the perspective of judicial reform efforts, and for

studies of democratic consolidation

The Accountability Performance of the Tanzanian Judiciary

A Tanzanian legal scholar labelled the country’s judiciary as timorous souls, fearing to tread onto politically

contested terrain.4 This broad picture does, however, contain significant deviations from the general pattern

While there are few spectacular rulings against the government in Tanzania, it is not unusual for the state to

lose in cases where the political stakes are lower

The direction of change over the past decade seems to be towards increased judicial independence and

assertiveness, although not all shifts are in this direction The judiciary’s small size (the higher judiciary

comprises less than 50 judges) and short institutional history, render individual personalities particularly

salient There are individual judges with a consistent path of politically bold judgements—most notably

Judge Mwalusanya who made a string of assertive judgements on human rights issues in the 1980s and

early 1990s, and whose retirement marked a sharp downturn in judgements challenging the government.5

Given the hierarchical structure of the judiciary, the personality of the chief justice is most significant

The first Tanzanian chief justice appointed after independence was weak and widely criticized for advising

judges to consider party policies He was replaced by Chief Justice Nyalali, who served almost three decades

and three presidents, gradually developing an appreciation for judicial independence and a more secure

position for the judiciary.6 The current Chief Justice Barnabas Samatta is commended for placing an even

stronger premium on judicial independence

There are diverging assessments of the willingness of the Tanzanian courts to stand up to the government

and say ‘no’ when called for, and regarding their authority vis-à-vis the government—or their ability to

‘make it stick’.7 In interviews, the judges generally expressed faith in the independence of the courts,

holding that—at least since the introduction of the multiparty system—they were free to decide matters on

purely professional grounds But they acknowledged political influence as a problem in the lower judiciary,

and that there are ‘psychological constraints and fears, particularly among magistrates The mental process

of adjusting to the multiparty conditions is still ongoing’.8 The scarcity of rulings against the government

was also attributed to people’s reluctance to bring cases against the government, and to the government’s

tendency to settle out of court in cases they are about to lose

Academic observers of the courts, people in the media, and NGOs, however, expressed discontent with what

was perceived as an unduly deferential attitude among the judges This was attributed mainly to the legal

culture Few suspected direct political pressure or corruption in individual cases in the higher courts, unlike

in the lower courts where corruption is considered rampant And in contrast with mainland Tanzania, strong

allegations of direct political influence were levied at the courts on Zanzibar Zanzibar’s Chief Justice has

been seen to merge the political will of the executive with the disciplining force of the internal court

hierarchy, dismissing and transferring pro-opposition personnel.9 The Court of Appeal, which Zanzibar

shares with the mainland is, however, seen as a safeguard: ‘Almost all Zanzibar High Court judgements go

on appeal—and about 80% are overturned.’10

Manifest Sanctioning

There are some significant cases in which the courts have sanctioned political power holders when they

have acted outside of their constitutional powers The most frequently cited is the so-called 5 million TSh

judgement (2002),11 characterized as 'the only important human-rights decision since 1994’.12 In order to

discourage frivolous litigation over elections—tying up resources and imposing costs on elected officers—

Parliament passed a law requiring election petitioners to deposit 5 million TSh (approximately USD 5,500)

as security for cost Opposition parties argued that the law would effectively bar people from challenging

flawed elections in court and an opposition candidate filed a case in the High Court arguing that the law was

unconstitutional A majority of the judges upheld the law, while Kimaro J, one of the few woman judges in

Tanzania, wrote a dissenting judgement holding the provision unconstitutional When the case came on

appeal, the Supreme Court ruled that the increase from TSh 500 to TSh 5 million was arbitrary and in

violation of the constitutional rights to equality and access to justice By requiring uniform payment of this

high amount the law discriminates on the basis of social status and effectively bars the right of poor people

to challenge in court infringements of their right to vote Parliament was found to have overstepped its

constitutional powers in enacting the unconstitutional provision, which the court declared null and void

Other significant examples include Judge Lugakingira’s judgement in the Mtikila case, which found

unconstitutional the ban on independent candidates and legislation regulating political rallies.13 In Peter

Ng’omango Judge Mwalusanya found unconstitutional the procedure for suing the government.14

Previously, litigants were required to obtain permission from the government in order to sue them, which

could take two to three years The amended clause requires litigants wanting to challenge the government to

give three months notice The Pumbun case concerned the scope of the derogation clauses limiting the

application of the basic rights in the constitution (Tanzanian Constitution, Article 30).15 The Court of

Appeal ruled that in order to be constitutional derogations or limitations of basic rights must be

non-arbitrary and satisfy the principle of proportionality, meaning that the limitation imposed must not be more

than is reasonably necessary to achieve the legitimate object.16 Several of the Tanzanian judges interviewed

pointed to this precedent, and similar cases internationally, as a way also to handle ouster clauses, shielding

legislation (such as parts of the electoral act) from judicial review

These politically significant cases, where the rulings of Tanzanian courts have been highly unpopular

with the government, illustrate manifest judicial independence Particularly the first example shows the

Supreme Court laying down its authority in a way explicitly challenging the authority of Parliament (and by

implication the executive, since the ruling party totally dominates in the National Assembly, the Bunge).

Compliance

Has the Courts’ authority been respected? The judges found President Mkapa (1995–) more committed to

constitutional government than his predecessor, and held that government officials, as a rule, respect the

courts’ authority and comply with adverse judgements ‘They may grumble and delay matters, exhausting

all possibilities for appeals, but if they are ordered to pay, they eventually will.’17 The increasing use of the

courts by the government was also noted as a sign of recognition ‘if the government wouldn’t want to

respect the rulings of the court—why use them?’18 This is a valid point, although the possibility of delaying

inconvenient matters for a decade through exhausting legal options may in itself be attractive

Civil society representatives agreed that the government would normally respect adverse decisions, but

noted that rulings had been overturned, most significantly in the Mtikila case referred to above (regarding

independent candidates, and legislation regulating political rallies), where Parliament blatantly overruled the

court and effectively reintroduced the clause But this is seen as exceptional While parliamentarians and

government representatives occasionally use harsh words against the courts, this is normally followed by

grudging compliance, as Parliament’s reaction to the 5 million TSh judgement illustrates When the courts

ruled the clause unconstitutional, it caused commotion in Parliament In a newspaper article the speaker

more than hinted that the Appeal Court judges had failed to observe the proper separation of powers, and

had overstepped their constitutional powers by taking on the role of legislator A heated public debate

followed Prominent members of the legal community came out in defence of the court, and eventually the

government signalled that the judgement would be accepted.19

Academic observers were more critical of the government’s respect for the court’s authority, arguing that

there are many cases where Parliament has amended laws in ways effectively nullifying the courts’

judgements and that what was different in the 5 million TSh case is that there was a debate Normally,

politically uncomfortable rulings are met with immediate reaction and it is done in silence.20 However, legal

academics also note some improvement:

The executive used to be hostile In 1996 there was a judgement by the High Court in Moshi where an

order was made for attachment of government property The President went all out in the media,

stating that the court would be overruled Now it would surprise me a lot if it were to happen again.

The government has come to realize that courts have their powers There are still a few isolated

incidents, but in general a very big improvement.’21

As for Parliament, ‘There has been no direct frustration by parliament of court decisions since the Mtikila

case—but on the other hand, how many cases have there been?’22

The scarcity of politically significant cases, where the courts have actually said ‘no’ to the executive or

parliament when constitutional limitations are overstepped, indicates that Tanzanian courts do not perform a

strong accountability function Considering the adverse reactions by public officials against several

significant judgements, the courts’ authority seems weak However, judicial authority may assess itself in

alternative ways

Latent Authority

Even when courts do not play their ‘veto card’ it may function as a latent sanction, keeping political actors

and public officials from engaging in unlawful activities, or passing unconstitutional legislation and so forth

In established democracies this is arguably the most important part of the courts’ accountability function To

assess the extent of this latent authority is complicated, but indications can be found in activities like the

drafting process for laws and policies, the role of constitutional arguments and public debate

The Attorney General who is drafting the laws in Tanzania, is supposed to advise on constitutionality, but

generally speaking the interviewees doubted that constitutionality is a serious concern for the Tanzanian

government Some noted, however, that it is becoming more of an issue ‘In the media it is certainly an

issue Generally, people are more concerned with their rights, and also in Parliament it is used as a political

argument.’23

While the picture of the Tanzanian judiciary’s’ accountability performance is more ambiguous when

looked at in some detail, the general pattern indicated at the outset seems to hold: judges rarely put down

their foot when government officials fail to comply with their mandate and the constitutional rules guiding

their exercise of power When the courts do come out with politically uncomfortable judgements, their

authority is not always respected And when it is, it is likely to be a grudging minimal compliance with the

direct terms of the judgement Court rulings seem to have limited effect on the political debate and the

outcome of political processes Despite notable recent developments, the overall assessment must be that

the Tanzanian courts have not been able to significantly limit executive dominance or the

‘hyper-presidential’ nature of Tanzanian politics Nevertheless, there are noteworthy examples of willingness—and

ability—to stand up to the political branches when they overstep their constitutional mandate

The Accountability Performance of the Zambian Judiciary

During 38 years of independence, Zambian courts have rarely delivered decisions that significantly

inconvenience the sitting government by seeking to check its abuse of powers, failures to deliver on

obligations, attempts to undermine the constitutional rules of the game or to overstep the mandate

The independence constitution provided for an independent judiciary with significant review powers, but

executive dominance, blurring of the party-state distinction, and close personal ties between the president

and the chief justice, provided poor conditions for judicial independence in the one-party state (1973–90)

The 1991 democratic elections raised hopes of change

Soon after Frederick Chiluba (MMD) took over as president, Matthew Ngulube was appointed chief

justice.24 He wrote some outstanding judgements, highly commended by lawyers and human rights

activists, most notably when in April 1995 he handed down a judgement finding unconstitutional certain

provisions of the Public Order Act, a rare case of judicial review of legislation that was highly unpopular

with the government (se below) By this time it was becoming clear that multiparty elections and

constitutional changes had failed to diminish the dominance of the executive president ‘Parliament is

totally useless in the governance of this country It is just an extension of State House, and a very expensive

one for that matter’.25

Subsequently the courts and the Chief Justice too came under criticism for moving towards a

pro-government stance Still it came as a total shock when Ngulube resigned in the last week of June 2002, after

Zambia’s main independent newspaper, The Post, revealed that he had secretly and irregularly received

around K700,000,000 (or USD 184,000) from the government, beginning in 1997.26 Despite criticism for

being soft in cases involving the executive, his personal integrity had not been questioned He was regarded

as ‘a legal giant’ and shock, almost disbelief, was expressed by all parts of the legal fraternity, as well as by

members of the political opposition and the NGO sector That the most senior and trusted court official was

caught red-handed has shaken the confidence of the courts in Zambian society, and strongly affects current

perceptions of the judiciary

Manifest Sanctioning

Despite the general pattern of political deference, judges of the Zambian High and Supreme Court have on

occasion stood up to government officials in order to prevent unconstitutional laws and abuse of power

Most significant is the Christine Mulundika judgement.27 In this case, the applicant and seven others,

including former President Kaunda, were charged with unlawful assembly contrary to section 5 of the

Public Order Act, requiring anyone who wished to hold a public meeting or demonstration to apply to the

police for a permit The constitutionality of the provision was challenged and the Supreme Court struck it

down, finding that it infringed upon the freedoms of expression and assembly guaranteed by the

constitution It was not justifiable in a democratic society, due to the uncontrolled nature of the discretionary

power vested in the police; the lack of safeguards against arbitrary decisions; and the failure to oblige the

police to consider whether less invasive means could achieve the aim of averting public disorder.28

In a case before the 1996 elections, The People v Senior Chief Inyambo Yeta and 7 others,29 the High

Court dismissed a treason charge against members of a main opposition party The High Court also ruled in

favour of three journalists from The Post, charged with receiving confidential documents, contrary to the

State Security Act.30

Both in 1996 and 2001, allegations of electoral misconduct gave rise to large numbers of petitions,

predominantly against the ruling party Several of the parliamentary election petitions decided after the

2001 elections, have gone in favour of the opposition.31 But, particularly with regard to presidential elections,

the length of time it takes to decide petitions compromises this procedure.32 Challenges against the

presidential election cannot be brought until two weeks after the new president is sworn into office—and

may take two years to decide—which severely complicates a ruling against the incumbent In the case now

pending, opposition parties approached the High Court immediately after the December 2001 elections,

insisting that the Chief Justice not declare the winner and swear in the new president until there had been a

re-count of the votes The court dismissed the claim, holding that they had no discretion to delay the

inauguration.33 The result is that hearings in the Second Presidential Petition, brought against President

Levy Mwanawasa, only commenced in mid-August 2002 A decision is not expected until late 2003

The most frequently cited failure of the Zambian judiciary to hold the executive to account is the First

Presidential Petition, 34 challenging President Chiluba’s re-election Here, the Supreme Court was widely

presumed to have bowed to executive pressure The background to the case was that the government in May

1996 forced a constitutional amendment through Parliament containing among other a controversial

provision requiring that presidential candidates must be Zambian citizens born to parents who are Zambian

by birth or descent, and must not be a tribal chief—requirements believed to be tailored to disqualify

specific opposition leaders and damage the opposition’s chances to effectively participate in the upcoming

general election The amendment was vigorously challenged by opposition parties and civil society.35 Five

opposition parties fielded a petition challenging Chiluba’s election as president for failing to satisfy (his

own) new criteria Chiluba’s father was alleged to come from Zaire, and the petitioners demanded that a

DNA test be taken to ascertain this This was rejected by the Supreme Court, a decision which was widely

seen a politically motivated.36 Poor electoral administration and questionable processes also formed part of

the challenge The court accepted that there were irregularities and instances of rigging, but not sufficiently

grave and systematic to justify invalidation of the election

Compliance

The Zambian government has normally complied with court orders: amended unconstitutional provisions

(at least marginally, although not always to practical effect); released prisoners (sometimes re-arresting them

soon after); and paid compensation when ordered to (although often with substantial delay) There are,

however, times when it has reacted harshly toward adverse rulings or ignored court orders For example the

1995 judgement on the Public Order Act (Christine Mulundika) attracted the wrath of the government and

harsh rhetoric in Parliament What was commonly seen as a smear campaign against the Chief Justice was

initiated, including rape allegations Lacking in credibility, this fizzled out but it is believed to have

contributed to the Chief Justice’s change of attitude towards the president In another instance Judge Kabazo

Chanda was suspended after ruling that awaiting-trial prisoners, who had not been charged within the set

time limit, be released The government was enraged by the decision, maintaining it to be outside the

judge’s jurisdiction, and appointed a committee to investigate misconduct The protracted process

effectively pressured the judge to resign.37

In 2001 the chief justice set up a tribunal to investigate allegations against three cabinet members,

including the minister of finance, for diverting 2 billion Kwacha (US$ 500,000) from the treasury to pay for

the MMD pre-election congress (allegedly on the instructions of the president) The minister of finance was

cleared on a technical point, but the others were found guilty of the theft of public funds The tribunal

ordered that the two be relieved of their parliamentary seats and one minister prosecuted However, the

president refused to dismiss them and the director of public prosecutions refused to prosecute Both were

adopted as parliamentary candidates in the 2001 elections During the 2001 election campaign, the minister

of information instructed the National Broadcasting Corporation to cancel a televised election debate The

organizers obtained a High Court injunction to prevent this, but were turned away from the studios by

armed police Opposition parties also obtained an order to ban district administrators (civil servants) from

taking part in MMD campaigns, but this was ignored by the government.38

Latent Authority

As discussed earlier, judicial authority may also function indirectly, keeping political actors and public

officials from engaging in unlawful or unconstitutional activities

Few of the Zambians interviewed believed that the government is restrained by the possibility of having

unconstitutional laws, or unlawful actions or policies, struck down Still, compared to Tanzania, there is

much more engagement around constitutional issues in Zambian civil society and to some extent in the

political opposition Both the opposition and the government seem more ready to fight out their battles in

court This gives the Zambian courts more opportunities to hold the executive to account, but as we have

seen, they have at times been reluctant to fulfil this function—and when they have said ‘no’ this has not always

been respected

On the basis of the evidence presented here we can conclude that there have been significant attempts

from judges in both Zambia and Tanzania to hold their governments to account, but neither judiciary has

developed a strong accountability function vis-à-vis the government Why is this so? The introduction

suggested that three sets of variables are relevant to understand why the judges perform as they do: the legal

culture; the institutional structure; and the courts’ legitimacy

Legal Culture

A central premise in institutional theory is that actors are motivated by the ‘norms of appropriateness’

prevalent in the institution within which they operate.39 Judges’ behaviour is influenced by the collective

conceptions within their communicative community of what a good judge should do It is therefore useful to

start by looking at the understanding among Tanzanian and Zambian judges of their proper role vis-à-vis the

executive

In both countries, the majority of the judges, while insisting on the importance of judicial independence,

are quick to point out that there are strict limits to their ability to check the actions of the other arms of

government (‘our function is to merely to apply the law as it is, not to make it’) They identify themselves

as part of the British common law tradition, and this identity is central in defining their ‘norms of

appropriateness’ They emphasize that, in the common law tradition, courts are reactive, rather than

proactive, and can only decide matters brought before them Some explicitly distance themselves from activist

colleagues, who fail to comply with the proper judicial role: ‘it’s imprudent and brings problems to the

bench—what if the politicians got to know?’40

The importance of observing the separation of powers is emphasized A Tanzanian judge, commenting on

the Mtikila case, where the Court of Appeal was overruled by Parliament, noted that ‘there is nothing wrong

with that It is the role of the courts to interpret the laws and the role of Parliament to enact laws.’41 Some of

the Zambian judges complained over the extent to which political battles were taken to court, holding that

matters of politics should be fought out in other arenas, and that the separation of powers requires judges

not to meddle in the business of Parliament and the executive But there were also other views Some

Zambian judges expressed considerable ambition to hold political actors accountable, underscoring that

after the resignation of Chief Justice Ngulube, the entire judiciary is ‘on trial’ and must demonstrate political

independence The most self-critical felt the judiciary has failed the Zambian people by not succeeding in

holding the MMD government to the terms of the country’s constitution

In Tanzania, several senior judges, including the Chief Justice, communicated an assertive conception of

the judicial role This view, also demonstrated in recent judgements,42 emphasizes the importance of the

courts’ accountability function in safeguarding democracy and human rights It reflects international

currents, strongly voiced also by very capable legal academics in Tanzania

We may thus conclude that ‘the un-political judge’ is a central norm of appropriateness in both countries,

explaining a reluctance to challenge the government if they can avoid it But in both countries there are also

more assertive positions among central judges, where the normative standard is to stand up to the executive

where called for So why does it happen so rarely? Are the institutional and structural conditions that

surround Zambian and Tanzanian judges at all conducive to a strong accountability function for the courts

vis-à-vis the executive?

The Institutional Structure

The term ‘institutional structure’ as used here embraces a range of structural and institutional factors

believed to impact on the independence of the courts and their ability to set limits for government officials’

exercise of power: the legal framework defining the courts’ powers and jurisdiction, regulations and

organization of the judiciary, as well as the financial and professional resources available

Powers and Jurisdiction

Both the Tanzanian and Zambian constitutions provide for an independent, impartial and autonomous

judiciary and each includes a Bill of Rights which—at least formally—grants the courts wide jurisdiction

and power to review legislation as well as administrative action Zambia enacted such provisions at

independence, while the Tanzanian courts had a weaker constitutional position until recently Judicial

independence was only explicitly recognized in 2000 A Bill of Rights was adopted in Tanzania in 1984,

but suspended until 1988 In the first years after it came into effect, the courts declared a lot of actions

unconstitutional But this changed after the ‘Basic Rights and Duties Enforcement Act’ (Act 33 of 1994)

introduced a new procedure for dealing with constitutional, human rights and civil rights cases Such cases

now had to be heard by a panel of three High Court judges This might appear unproblematic, but in Tanzania

most High Court divisions only have one or two judges The change caused delays and increased costs since

in practical terms most constitutional cases had to go to Dar es Salaam It also greatly increased the internal

control of the chief justice and court administration over individual judges since they could avoid judges

with a record for activism on such cases, or team them up with judges of a more conservative mindset The

result was a sharp decrease in constitutional cases ‘I used to collect 2–3 cases a week, but after 1994 there

was a complete stop…now we have maybe 1–2 human rights cases a year.’43

Both Tanzania and Zambia have ouster clauses limiting the jurisdiction of the courts Pieces of legislation

are shielded from review, such as parts of the Tanzanian Election Act of 1984, which states that once a

person is declared president this cannot be challenged in court The declaration is ‘final and conclusive’ and

the president is sworn in two days later In Zambia, many of the basic rights acknowledged in the

constitution are rendered unjusticiable Constitutional changes and wide derogation clauses has undermined

the constitutional protection of rights While courts in various countries are now challenging the

constitutionality of such clauses, this is not happening in Tanzania or Zambia Leading Tanzanian judges hold

that if such cases are placed before them they would not accept unreasonable ousting of the court’s

authority Zambian judges seem less ready to challenge such limitations, for example by relying on

arguments from international precedent and foreign case law

Appointment Procedures

The question of who appoints the judges and the procedure and criteria for selecting them are widely

regarded as important for their independence and for the public’s perception of the courts

Both in Tanzania and Zambia the president appoints the Chief Justice But while in Zambia every new

president has appointed a new chief justice upon taking office, Tanzanian chief justices have generally

served their terms undisturbed by changes in the political leadership In Tanzania, Judges of the Appeal

Court are appointed by the president on advice of the Chief Justice This used to be the procedure also for High

Court judges, but these are now appointed by the President on advice of the Judicial Services Commission

(JSC) The president normally follows this advice, but is not committed to do so, and has on occasion

appointed judges from outside the list of nominees

In Zambia, the process is similar, but appointments as chief justice, Supreme and High Court judges must

be approved by a Parliamentary majority.44 As in Tanzania, the Judicial Services Commission nominates

the High Court judges, and while the president generally follows the recommendation, this is no formal

obligation With a weak opposition in the 1990s the parliamentary approval process has been a mere

formality In the 2001 elections the ruling party lost its parliamentary majority, and this could favour a more

active involvement of the legislature in the appointment process (although floor-crossing and by-elections

have again tilted the house in favour of the MMD) On the other hand, President Mwanawasa was a senior

advocate and knows the Zambian legal community That he is in a position to personally scrutinize and

handpick the candidates could mean a stronger executive influence over appointments

Appointment procedures are criticized in both countries, particularly the strong involvement of the

President In Zambia, political appointments are seen to be a manifest problem, with the deputy Chief

Justice cited as the main case in point In Tanzania, the involvement of the President is primarily seen as a

problem for public confidence in the judges’ independence With regard to the actual judicial appointments,

there are few complaints The internal judicial hierarchy is seen as much more important for who are appointed

to the bench and assigned to various positions The criteria for being eligible for appointment as a judge in

Tanzania are a minimum of five years of practice after admission to the bar, or working through the ranks

of the magistracy The majority of the judges currently on the bench are appointed from the magistracy, but

several recent appointments are from private practice Neither country has a public selection process or

formal procedure for nominating candidates and few, even within the judiciary, seem to have a clear

understanding of the selection criteria and the practice followed or how seniority and merit are balanced

against other factors such as gender, region—or loyalty

Terms and Security of Tenure

Non-renewable terms of service and security of tenure are seen as crucial to insulate judges so that they can

make rulings that are unpopular with the executive without fearing a direct political backlash Both in

Tanzania and in Zambia judges are appointed for life The retirement age is 65 years after which they can be

asked to stay on as contract judges Due to lack of qualified local candidates, Tanzania used to have a

number of foreign judges working on contract—Zanzibar still does For contract judges tenure is not secure

The process for dismissing judges is the same in the two countries: a commission of inquiry is appointed

consisting of three judges of which one has to be from another Commonwealth jurisdiction The committee

recommends to the president, who may dismiss the judge if the committee has concluded that there is a case

of gross misconduct or gross incompetence In both countries this has happened, but rarely

Interestingly, Tanzanians generally view judges’ security of tenure as adequate (but not for judicial officers

in the lower courts), while in Zambia there is more criticism of the procedure, and particularly of the

president’s role in the dismissals A noted problem is transferrals: ‘a judge who falls foul of the executive

could easily find himself appointed to head an obscure Public Commission…’.45

Tenure is not only about protection from removal, but also whether judges’ salaries and conditions of

service are adequate and reasonably secure If judges lose out economically from being troublesome, they

are unlikely to try Zambians interviewed noted the executive’s influence on the judges’ service conditions

as a problem The president approves pay rises and adjustments and both Chiluba and now President

Mwanawasa approved large salary increases at times when the government had very important cases before

the court During the hearings on the first presidential petition (against Chiluba’s eligibility as a candidate)

the judges’ salaries were adjusted twice Similarly, it was adjusted while the petition against Mwanawasa’s

election remained pending Observers of the courts recognize the need to improve the judges’ salaries, but

see the timing as a signal of an unhealthy attitude and an attempt by the president to influence the judges

The judges, seeing the rise as overdue and the timing coincidental, still hold that it would have been better—

particularly for their public image—if they did not have to rely on negotiations with the executive for their

salary

Judges’ remuneration should be sufficient to attract good candidates for office, secure a modicum of

social respect and protect against petty bribery Judges’ salaries have improved in later years in both

countries, placing them among the best-paid civil servants and with generous benefits (furnished house, car,

driver, petrol, guards, domestic servants, retirement benefits—the Zambian judges’ non-practice allowance

almost matches their nominal salary) The judges appreciate that these are generous, but still regard the

package as inadequate, claiming to be poorly paid compared to judges in other southern African countries

and lawyers in private practice That lawyers decline judgeship is a particularly acute problem in Zambia

where a donor-sponsored NGO lawyer takes home more than a high court judge, and a reasonably

successful private advocate could earn ‘a hundred times more’.46 It is suggested that in order to be attractive

for the best lawyers, judges’ salaries would need to be two to three times higher

Budgetary Autonomy and Adequacy of Resources

In both countries and at all levels of the judiciary, lack of funds is identified as the major factor limiting

their ability to function as well as they could It is particularly acute in the lower judiciary (dilapidating

buildings, lack of basic facilities, transport, even pens and paper to write judgements.) Also the higher

courts complain of a notorious lack of resources (telephone, fax, copying machines, computer facilities,

recording equipment, library resources) and trained support staff (secretaries, court reporters).47 The

situation causes frustration, disillusionment and long delays, affecting all aspects of their work, their

standing in society, staff morale—and their accountability performance

The situation has improved at the High Court level in both countries, particularly in the capital, mainly

through donor-funded projects There are plans to reform the lower court too, but it seems that priority is

given to the higher courts where reforms are more manageable and results can be seen more quickly; each

country has fewer than 50 judges in the higher judiciary but more than a thousand judicial officers in the

lower courts Appalling conditions are thus likely to persist in the section of the court system that most people

encounter, contributing to the serious problems undermining ordinary people’s faith in the courts

In addition to inadequate resources, the judiciary’s lack of autonomy in the administration of its budget is

also a concern Both in Zambia and in Tanzania, the judiciary depends on the cabinet to take their budget to

parliament And of the approved budget, only a portion is normally released If the budget for the judiciary

was directly approved by the parliament and released at the year’s start, it would allow for more rational

planning of activities Even more important from the perspective of the courts’ accountability function is

that as long as the executive controls the budget, judges may have reason to fear ‘starvation’ if those in

power believe them to be unhelpful Few suggest that the current under-funding is deliberate in this sense,

but it nevertheless remains a serious concern

The Zambian courts have an advantage compared to their Tanzanian counterparts in that they may use the

court fees to pay for running expenses In Tanzania, fees collected by the courts are paid into the treasury

and the courts have no funds beyond those released by the government (with one exception: the

Commercial Division of the High Court negotiated an arrangement where the court fees are retained, but

have to cover all the costs Ordinary courts would have difficulties surviving on fees alone, but in the

Commercial Division court fees are high, and the arrangement leaves them with a more predictable

economic situation).48 The lack of adequate and secured funds seems to be a major factor limiting the ability

and willingness of courts to hold the executive to account Lack of resources and the related difficulty of

recruiting qualified judges (particularly in Zambia), are major causes of the backlogs and delays marring

these systems, undermining the public’s confidence, and thus directly and indirectly hampering the

performance of the courts The way the budget is allocated may condition them to stay on good terms with

the executive to keep what little they have Financial scarcity may also affect the courts accountability

function negatively through the effect it has on their jurisprudential resources.

Jurisprudential Resources

The ability of judges to say ‘no’ to the executive and ‘make it stick’ depends not only on their independence

in the sense of a willingness to go about their work ‘without fear or favour’, but also on their ability to use

the law to this effect in ways that commands authority This requires tools to sustain sound legal reasoning,

and develop a consistent jurisprudence These ‘jurisprudential tools’ include training for judicial personnel,

relevant legal material, and professional forums for exchange of experience with ‘relevant others’

In Tanzania adequate jurisprudential resources are lacking at all levels: even the library of the Supreme

Court of Appeal lacks essential law journals, law books, and updated material on foreign case law High

Court centres have libraries, but they often lack even case material from the national courts The problem is

almost as great in Zambia, but is overshadowed by the shortage of qualified personnel In October 2002

there were 24 High Court judges in Zambia; six seats were vacant The Supreme Court of Appeal had seven

judges instead of nine.49 The recruitment problems have resulted in a situation where, as one interviewee

explained, ‘the best legal minds in the country, with one or two exceptions, are not found on the bench’ In

the legal community, the professional quality of the judges was seen to be the main factor detracting from

their ability to hold the executive to account

In the lower judiciary, the situation is particularly disturbing Magistrates handle the bulk of criminal

cases including all corruption cases Corruption is a prominent problem in Zambian political life That

high-level economic crimes and corruption cases, often involving government officials, are tried by magistrates

who lack specialized knowledge and relevant case material, detracts from the judiciary’s accountability

performance Few magistrates are qualified university lawyers; most have only undergone a two-year

training course Making matters worse, since 2000 there has been no training programme for magistrates in

Zambia When people retire or die (and the HIV/AIDS pandemic is taking its toll in the judiciary) they are

almost impossible to replace; university law graduates are rarely willing to join the magistracy, given the

poor conditions of service Magistrates earn a fraction of what the judges do (less than 1:10), and do not

have the benefits, accommodation or transport The common view is that a magistrate’s wage is insufficient

to support a family, and that this drives the rampant corruption in the lower courts Magistrates also lack the

security for tenure that provides judges’ political insulation In Tanzania conditions in the lower courts are

almost identical, but the recruitment of qualified staff is less of a problem Tanzania has an operative

magistrates’ training programme, and university candidates are also recruited into the magistracy

Recruitment of judges is not a problem: most are appointed from among senior magistrates, but, as noted

earlier, judges are also recruited from private practice

Access to case material is a problem at all levels and in both countries In some lower courts even statute

books are missing and magistrates rely on notes from the training they had years back High Court judges

complain of difficulties accessing colleagues’ judgements Supreme Court judges lack access to

international legal literature, journals and foreign case law The situation did improve substantially both in

Tanzania and Zambia after the publication of their Law Reports was resumed, although these include only a

small number of judgements for each year

Reading significant judgements where the courts assert their position vis-à-vis the executive, there is a

notable reliance on foreign case material Judges confirm that the authority provided by backing in foreign

case law is welcome Most of the Tanzanian judges interviewed (fewer in Zambia) found legal material from

other countries useful Some noted that international precedent, used effectively, could be used to overcome

limitations on jurisdiction British and Indian cases are commonly used, and also those from other

Commonwealth jurisdictions African case law is seen as highly relevant, but is often difficult to get hold

of The Law Reports that are published regularly are usually not widely distributed Some judgements are

available on the net, but most Tanzanian and Zambian courts lack Internet access

This discussion of the institutional structure that the Zambian and Tanzanian judges operate within shows

that the various aspects interconnect and work together to strengthen or weaken the courts’ accountability

performance But there is also another important element in this picture A paramount condition if the courts

are to play an active role vis-à-vis the government is that relevant cases are placed before them This in turn

depends on a high level of rights awareness in the population, access to legal assistance, and active civil

society organizations For people and organizations to spend their resources on court cases, there must,

however, also be a minimum of trust in the institution

Social Legitimacy

The courts’ ability to stand up to the executive depends on whether they have a secure basis in society, on

whether people trust and use them and come to their defence if their independence and authority is

undermined The legitimacy of the judiciary is in turn affected by how they are perceived to fulfil their role:

meeting people’s needs for dispute resolution; upholding law and order; and preventing abuse of power by

government officials To what extent do Tanzanian and Zambian judges have legitimacy in the different

parts of their societies? Are the courts respected and considered socially relevant? Do they have the social

support that would make it costly for the executive to contravene their decisions or encroach upon their

independence?

According to surveys the vast majority (72 per cent) of Tanzanians express trust in the courts.50 Still,

there are complaints, particularly over delays and corruption That ‘ordinary people have to pay for justice’

is seen to be a problem in the lower courts.51 The president’s role in appointing judges is seen to

compromise the independence of the higher courts, but many seem to believe that they are now moving

away from a pro-government position Nevertheless, they are considered to be for the elite: ‘Political cases

are irrelevant for most people.’ Even this may, however, be changing The judiciary is in the public eye,

cases are reported in the media, there is an increasing awareness of the constitution in Tanzanian society,

and particularly of rights issues: human rights, civil rights, even political rights—to some extent also issues

of separation of power.52

None of those interviewed believed there would be significant public protest if the president was to clamp

down on the judiciary, pressuring the chief justice to resign or removing a troublesome judge Few thought

it likely, but were it to happen it would only spark discussions for a couple of days, then it would be over

This ambivalent and disengaged attitude towards the courts on the part of ordinary Tanzanians may be

related to poor access to justice Those charged with capital offences are provided with a defence lawyer by

the state, but otherwise, there is no legal aid Poor people can apply and be granted permission to go to

court without paying fees, but have to argue their own case The university’s legal aid committee takes on

some cases; the Tanganyika Law Society offers legal aid, as does a handful of organizations, but they give

mainly legal advice, only rarely is a lawyer appointed and paid to argue the case NGOs in Tanzania may be

de-registered for political activities, which may be why they have not themselves initiated test cases.53

The legal NGOs seem to have a good working relationship with the courts The judges recognize the

importance of their work in legal aid and legal literacy But the NGOs operating in this field have limited

capacity and most are based in the capital Outside urban centres ordinary people can rarely access

professional legal advice The situation is somewhat better in Zambia, where the NGO sector is much

stronger, but the Zambian courts struggle with legitimacy problems of their own Asking Zambians whether

they have confidence in the courts attracts ambivalent replies The Afrobarometer surveys found that a

majority of Zambians (56 per cent) trusted the courts, a much higher percentage than for the political

branches Interestingly, the order is reversed in Tanzania, where the 91 percent of the sample express trust

in the president (compared to 38 per cent of Zambians).54 Interviewees’ perceptions of the judiciary were

marked by the corruption scandal that led to the chief justice’s resignation in June 2002 They displayed a

profound ambivalence, indicating that judges are fair in most cases but that they rule for the government in

politicized cases, and take bribes if big money is involved Despite complaints over widespread corruption

and judges bowing to political pressure, Zambians continue to use the courts in large numbers, as do

politicians from opposition parties The lodging of petitions after the December 2001 elections is illustrative

Out of a total of 150 constituencies for the parliamentary elections, losing candidates (predominantly from

the opposition) lodged petitions in 47 cases After petitioners were ordered to pay Klmillion55 as security

for costs, 15 cases were dropped This might not be a large amount of money for the contenders, but

combined with fees and lawyer’s charges it is far from insignificant, and would hardly be invested if there

were no expectations of a fair ruling

Another problem that Zambia shares with Tanzania is that the courts are irrelevant for a large part of the

population, partly due to poor access Many rural Zambians have considerable distances to travel to reach

the nearest court; traditional courts continue to flourish outside the formal legal system, with chiefs and

headmen adjudicating without legal jurisdiction Punishment meted out is often severe, including corporal

punishment, which is unconstitutional.56 But being outside the legal system, there is no possibility of

appeal This disadvantages women in particular, as customary law is generally harsh on women A

development of customary law is taking place in the local courts, particularly in urban areas, according

women a stronger standing, but this rarely reaches the traditional courts.57 Despite these problems, the

Zambian courts seem to have a stronger social base than their Tanzanian counterparts, mostly due to a

better-resourced and more vibrant civil society which regards the legal arena as a useful channel in which to

fight for their causes.58 Some good organizations are willing to litigate important cases There is also a

private press, which focuses on legal issues, providing a forum for critical voices

Concluding Remarks

This analysis has shown that the Zambian and Tanzanian judiciaries do not have a strong accountability

function vis-à-vis their governments In both countries executive dominance remains the dominating feature

of political life Yet the courts are not insignificant In both countries judges have made politically

important decisions and, with parliament dominated by the ruling party, courts emerge as perhaps the most

significant accountability institution in the polity

A pattern distinguishing the accountability performance of the two judiciaries have emerged: Tanzanian

courts have few ‘spectacular’ political cases, but have on occasion explicitly undertaken the task of ensuring

that political power-holders do not overstep their constitutional powers In Zambia the courts receive more

politically significant cases and the judges are conscious of and concerned by the possible dangers related to

excessive politicization, favouring an ‘apolitical’ role where possible

The analysis has investigated how these differences are related to a range of factors constituting the

judges’ predicament These are grouped into three categories: The legal culture, which defines what judges

believe they ought to do; the institutional structure, consisting of the institutional and practical conditions

that enable and constrain judges in their work; and the court’s social legitimacy, looking at whether the

courts can draw input and support from groups in society

In both countries, the ‘un-political’ judge who ‘merely interprets the law’ is the dominant professional

norm, which does not favour a strong accountability function Several Zambian judges felt there was a

strong need for the judiciary to demonstrate political independence after the corruption scandal involving

the chief justice The Supreme Court was in the process of hearing the petition against the election of

President Mwanawasa in December 2001, and this judgement was expected to send important signals

regarding how the Zambian judiciary will redefine its role vis-à-vis the executive

The ‘apolitical’ view is most clearly challenged from within the judiciary in Tanzania Central judges,

including the chief justice, portray the judge as active defender of constitutional rights and the operation of

the democratic process, which equates to a strong accountability function That this more assertive

conception of the judicial role (in line with strong international currents) is more pronounced in Tanzania

seems to coincide with larger share of academically-oriented judges This in turn seems to be related both to

their engagement with a stronger academic legal community in Dar-es-Salaam, and to the fact that the

judiciary seems a more attractive option for ambitious lawyers in Tanzania than in Zambia, where the many

foreign funded NGOs and the private sector offer much more lucrative options for bright legal scholars

The institutional structure, which defines (and is defined through) the relationship between the judiciary

and the political branches, differ in important respects between the countries In Tanzania, the main

response from political branches against judges asserting their powers has been to build restrictions into the

legal framework, effectively limiting the scope of decisions and the flow of cases reaching the courts This

represents continuity with the first decades after independence, when the government marginalized the

courts by resisting the enactment of a strong body of law (bill of rights, legislation to underpin policies)

The case flow is also limited by the much weaker civil society in Tanzania, which in turn is also related to

the legal restrictions on NGOs

In Zambia judges have more generous formal powers The executive seems to rely more on

individualized and informal pressure to avoid strong judicial accountability: the driving forces of social

ambition (the carrot of promotion, pay increases, or payments on the side) and fear (the stick of punishment

through smear campaigns, loss of position, public disgrace) Consequently, self-censorship is notable.59 As

a consequence the Zambian judiciary is generally perceived as more politicized than in Tanzania, in spite of

stricter formal procedures for appointment, tenure and so on designed to insulate against political influence

An effect of the differences in legal-political relations between the two countries appears to be that the

Zambian courts while more politicized, are less affected in their ability to carry out routine justice.

Significant in explaining the higher level of politicization of the judiciary in Zambia is the historical fact

that chief justices, although formally serving for life or until retirement age, have in practice changed with

every new president, whereas Tanzania has not changed the chief justice with the political administration

This can be explained by the political continuity in Tanzania (where all changes of government have been

‘within the CCM family’) Nevertheless, this de-linking of the processes of political and judicial change

may have prevented politicization of the courts Neither the Zambian nor the Tanzanian judiciary seems to

have strong social support that would render the political cost of undermining them prohibitive Yet in both

countries the courts have a form of diffuse support in the population, as well as certain ‘constituencies’

strengthening them in relation to the government Important among these are the international donors, who

increasingly emphasize the importance of the judiciary in securing good government, and on whose

co-operation these governments depend Closely linked to the donors are the domestic NGOs who, with other

groups in civil society are perhaps the courts’ most significant local constituency Organized civil society is

comparatively larger and more vibrant in Zambia Its weakness in Tanzania contributes to the relatively

small number of politically significant cases argued before the courts there

How the Tanzanian and Zambian courts will develop their accountability function is difficult to predict

There is potential in both cases, but also major challenges Much depends on whether these judiciaries are

able to secure the resources needed to institutionalize ‘downwards’ in a way that make them socially

relevant

ACKNOWLEDGEMENTThe account has benefited from useful comments in the workshop on ‘The Accountability Function of

Courts in New Democracies’ held in Bergen, November 2002, and from the political science group at the

Chr Michelsen Institute Particular thanks to Sufian Bukurura, Arne Tostensen, Lise Rakner, Elin Skaar and

Roberto Gargarella I would also like to thank my Zambian and Tanzanian interlocutors who generously

shared their time and knowledge

NOTES

1 The analysis is based on interviews conducted in Tanzania in July/August 2002 and in Zambia in October 2002 with

members of the judiciary and with users and observers of the legal system from the legal community, governmental organisations (NGOs), academia, the media, government, and ‘ordinary people’ It also draws on

non-existing studies: Sufian H Bukurura, The Judiciary and Good Government in Tanzania (Bergen: Chr Michelsen Institute, 1995); George Kunda, ‘The Zambian Judiciary in the 21st Century’, Zambia Law Journal, Vol.29 (1998), <http://zamlii.zamnet.zm/comment/zlj/artsfull/30z29.htm>; Chris Maina Peter, Human Rights Case Book (Konstanz: Hartung-Gorre Verlag, 1997), Lise Rakner et al., Analysing Political Processes in the Context of

Multiparty Elections: Zambia 2001–2002 (Bergen: CMI/Inesor Project Reports, Chr Michelsen Institute, 2002);

John Ruhangisa, Human Rights in Tanzania, unpublished doctoral thesis, University of London, 1998; Jennifer Widner, Building the Rule of Law in Africa (New York: Norton Press, 2001).

2 See Guillermo O’Donnell, ‘Horizontal Accountability in New Democracies’, in Andreas Schedler et al (eds) The

Self-Restraining State (Boulder, CO: Lynne Rienner Publishers, 1999), pp 29–51.

3 See Roberto Gargarella, ‘In Search of a Democratic Justice—What Courts Should Not Do: Argentina, 1983–

2002’, pp.181–97, this volume.

4 Professor Chris M.Peter, interview, University of Dar-es-Salaam, July 2002.

5 See Peter, Human Rights (note 1), Widner (note 1), Bukurura (note 1) and Ruhangisa (note 1).

6 Widner (note1).

7 On the term ‘say “no” and make it stick’, see C.Larkins, ‘Judicial Independence and Democratization: A

Theoretical and Conceptual Analysis’, American Journal of Comparative Law, Vol.44, No.4 (1996), p.610.

8 Judge Munou, interview, Moshi, August 2002.

9 Interviews with several Zanzibar lawyers, August 2002 Permission to cite by name was not obtained.

10 Ibid Chief Justice Samatta at the Court of Appeal could not confirm that they overturned significantly more

cases from Zanzibar (interview, Dar-es-Salaam, August 2002).

11 Julius Ishengoma Francis Ndyanabo vs The Attorney General (C.A no 64 of 2001, judgement on 14 February

2002).

12 John Ruhangisa, Registrar of the East African Court, interview, Arusha, August 2002.

13 Rev Christopher Mtikila versus Attorney General (High Court of Tanzania at Dodoma, 1993) reported in Volume

I, Commonwealth Human Rights Law Digest (1996), p.11 and in Peter, Human Rights (note 1) p.674.

14 Peter Ng’omango versus Gerson M.K.Mwarangwa and another High Court of Tanzania at Dodoma, (1992),

reported in Peter, Human Rights (note 1) p.309.

15 Court of Appeal of Tanzania at Arusha, Pumbun and Another versus Attorney-General and Another, (1993) 2

LRC 317.

16 See Alfred Chanda, ‘Constitutionality of the Public Order Amendment Act and its Application to Date’, The

Human Rights Observer, Vol.3 (October 2000), <http://www.oneworld.org/afronet/theobserver/

Vol3_page6.htm>.

17 Munou interview (note 8).

18 Judge Nsekela, interview, Dar-es-Salaam, July 2002.

19 P.Mlebusi, Red Cross Society of Tanzania, interview, Dar-es-Salam, July 2002 For the public documents in the

case see Bunge News, Vol.16 (July 2002), special issue on ‘Separation of Powers between Legislature and

Judiciary’.

20 Peter interview (note 4).

21 Ruhangisa interview (note 12).

22 Ibid.

23 Jenerali Ulimwengu, chairman of the Habari Corporation, member of Media Council, interview, Dar es Salaam,

July, 2002.

24 Kabazo Chanda, interview, Bergen, January 2002.

25 Fred M’membe, Editor-in-Chief of The Post, 6 May 1996, quoted in Peter Burnell, ‘Legislative-Executive

Relations in Zambia: Parliamentary Reform on the Agenda’, Journal of Contemporary African Studies,Vol.21,

No.1 (2003), p.47.

26 Reported in The Post (Lusaka) 27 June and 2 July 2002, and remarked on by Sakwiba Sikota, United Party for

National Development Member of Parliament, interview, Lusaka, October 2002.

27 Supreme Court of Zambia: Christine Mulundika and 7 Others v The People (SCZ/25/1995).

28 See Chanda, ‘Constitutionality’ (note 16).

29 HCZ, 1996 (unreported), printed in The Post (Lusaka), 4–8 November 1996.

30 The People v Fred M’membe, Matsauso Phiri and Bright Mwape (HP/38/1996, unreported), <http://

www.post.co.zm/legal3.htm>.

31 See F.M Ng’andu and K.C.Chanda ‘The Role of the Judiciary in Promoting Transparency and Honesty in the

Zambian Electoral Process’, report presented at final workshop of the Norad/CMI/Inesor project on ‘Political Processes in Zambia’, Lusaka, October 2002.

32 Ibid.

33 Godfrey Miyanda and Others v Attorney General, the Electoral Commission and Returning Officer for

Presidential Elections (HP/1174/2001)

34 A.M.Lewanika and others versus F.J.T.Chiluba SCZ/8/EP/4/96 (‘The first presidential petition’) Judgement on

10 November 1998(9), at <http://www.oneworld.org/afronet/ other/petition.htm>.

35 Human Rights Watch, Zambia: Elections and Human Rights in The Third Republic, Vol.8, No.4 (A) December

1996, <http://www.hrw.org/reports/1996/Zambia.htm>.

36 Ng’andu and Chanda (note 31).

37 Kabazo Chanda interview (note 24).

38 Ng’andu and Chanda (note 31).

39 John G.March and Johan P.Olsen, Democratic Governance (New York: Free Press 1995).

40 Nsekela interview (note 18).

41 Ibid.

42 See particularly the 5 million Tsh judgement.

43 Peter interview (note 4).

44 Constitution of Zambia, 1995, Article 93 and 95.

45 Ng’andu and Chanda (note 31).

46 Geoffrey Mulenga, Legal Services Centre, interview, Lusaka, October 2002.

47 See also Widner (note 1).

48 Ruhangisa interview (note 12).

49 One is on long-term leave to the International Criminal Court, The Hague.

50 Amon Chaligha et al., ‘Uncritical Citizens or Patient Trustees? Tanzanians’ Views of Political and Economic

Reform’, Afrobarometer Paper No.18 (Cape Town: IDASA), p.43.

51 Almost half of the respondents believe judges are corrupt, which is about the same as for elected leaders and

businessmen, and much better than for the police Ibid., p 44.

52 Clement Mashamba, Legal and Human Rights Centre, interview, Dar es Salaam, August 2002.

53 Ibid.

54 Chaligha et al (note 50) p.43.

55 Exchange rate of one pound sterling=K7,600 or one US dollar=K4,800 at April 2003.

56 J.Chanda vs The People (HCZ/1999, unreported).

57 Matrine Chulu, Wilsa, Lusaka, October 2002.

58 Ibid.

59 Ng’andu and Chanda (note 31).

Renegotiating ‘Law and Order’: Judicial Reform and

Citizen Responses in Post-war Guatemala

RACHEL SIEDER

Introduction

In recent years political scientists have become increasingly concerned with issues of accountability and law

in contemporary Latin America It is over two decades since the return to elected civilian rule, yet the

democratic rule of law remains extremely weak in the region and is generally agreed to be one of the major

‘deficits’ of existing democracies Although the picture varies from country to country, in general levels of

impunity are high and recourse to extra-judicial means of conflict resolution a commonplace, public

security provision remains poor in the face of soaring crime levels, and the population’s confidence in the

judicial apparatus is low

Domestic and international advocates of strengthening the rule of law in Latin America have, to date,

tended to focus on institutional factors, advocating a familiar range of measures which aim to advance

greater judicial independence, efficiency of the justice system and greater access to justice for the

underprivileged.1 These include the overhaul of court administration, updating legislation and codes, the

creation of judicial councils to ensure less politicised appointments procedures for judges, better judicial

training and the strengthening of legal aid and non-judicial conflict resolution procedures.2 These measures

have often been advanced within the broader context of post-transition and post-conflict reforms

Discussion focuses principally on how to achieve the ‘correct’ combination and sequencing of institutional

change Such procedural initiatives are generally uncontroversial in and of themselves: the need for more

efficient and independent courts, better trained judges and lawyers and improved legal representation for the

poor across the region is undisputed However, although the institution-building approach is now undoubtedly

the dominant donor strategy, all too often it pays too little attention to the broader socio-legal and political

context in which reform takes place.3 Prescriptions for strengthening the rule of law are invariably premised

on an implicit model of law and legal institutions based on established western democracies or on an ideal

Weberian-type state (after the German sociologist Max Weber) Too much emphasis tends to be placed on

the design of judicial reform programmes and far too little on evaluating why such proposals are not

successfully implemented This perhaps goes some way to explaining why although over a billion dollars

has been spent on judicial reform in Latin America during the last 15 years, the results have been singularly

disappointing

This analysis employs a path-dependent, long-run historical approach which pays due attention to national

specificities in order to analyse the prospects for constructing or strengthening the ‘rule of law’ in any given

country Informed by recent debates and new methodological perspectives towards the study of law within

the fields of social and cultural history and critical anthropology, such an approach seeks to locate

examination of current legal reform efforts within a broader analysis of the historic interactions between

individuals, different social groups and the law.4 It understands law as an historical and social construct,

rather than reducing it simply to a set of institutions While it is certainly true that transitions from

authoritarian rule or armed conflict offer important opportunities to reshape institutions and challenge

existing practices and attitudes, such possibilities are constrained by the ways in which law has historically

been configured, exercised, engaged with and understood In this sense the investigation of historical

patterns of legal ordering and of interactions of elite and popular perceptions of ‘law’, ‘rights’ and ‘justice’

in different local contexts is of critical importance It should also be emphasized here that individual and

group understandings of ‘the law’ are shaped not only by interaction with state law Extra-national forms of

law such as Spanish colonial law or international humanitarian law, and non-state forms of legal ordering

such as indigenous customary law, have also had a major impact on the nature of the law in Latin America

and popular attitudes towards it As has often been observed, law is an arena of social, political, economic

and cultural struggle and as such is shaped by multiple and overlapping contestations and negotiations Due

attention to specific regional and national histories illuminates the nature of state formation, interactions

between the state and civil society, social attitudes towards acceptable or appropriate forms of punishment,

and understandings of citizenship All these are critical to shaping specific legal orders and legal cultures

and, in turn, to conditioning the outcomes and effects of contemporary processes of legal reform

The account focuses on Guatemala and considers the experience of legal reform linked to the peace

process during the latter half of the 1990s Space does not permit a comprehensive analysis of the historical

development of law and legal cultures in that country—necessarily a much lengthier and more ambitious

project However, a number of key historical features of the Guatemalan case relevant to analysis can be

signalled here They are, first, marked distance and separation between popular mechanisms for conflict

resolution and the state’s judicial apparatus; second, acute and persistent socio-economic inequality; third,

military dominance of political and legal institutions of the state, fourth, racism and discrimination against

the majority indigenous population, and; fifth, very high levels of state violence

During the colonial period semi-autonomous and subordinate spaces existed for the majority indigenous

population who were subject to the laws of the República de Indios, which provided for their segregation

and limited protection at the same time as they guaranteed their continued exploitation A dual legal system

operated, with the non-indigenous population governed by the laws of the República de Españoles The

present day republic of Guatemala was a key centre of the Spanish colonial enterprise and legal interactions

and mediation between Crown, peninsulares, criollo elites and the indigenous populace were central to the

reproduction of colonial society Traditions of legal engagement were as deeply rooted as the existence of

separate legal spheres for Indians and non-Indians In the early republican period attempts to raise taxes and

introduce liberal reforms and legal institutions, such as trial by jury and a new penal code, contributed to a

conservative-led indigenous revolt in 1837 that initiated three decades of conservative rule.5 The

conservatives restored the Leyes de los Indios and a paternalistic attitude of the state towards the indigenous

population prevailed After the victory of the liberals in 1871, state laws were used to aggressively promote

the production of coffee for agro-export Forced labour arrangements were intensified and the consolidation

of a professional army allowed for their more rigorously policing by an increasingly centralized state While

communal land titles were not subject to the kind of wholesale assault that occurred in El Salvador during

the 1880s and 1890s, state law actively promoted the privatization of so-called tierras baldias in favour of

new coffee elites.6 However, at the same time as the liberal legal order in Guatemala became highly

centralized and militarized, subordinate semi-autonomous legal spheres for local conflict resolution

continued to exist within indigenous municipalities, particularly in the western highlands Whilst it declared

an ideology of assimilation, in practice oligarchic liberalism in Guatemala continued to segregate the

population along ethnic and class lines.7 New vagrancy laws were introduced to ensure a supply of un-free

labour for coffee production and road construction and the role of the military became ever more central in

underpinning the economic order Under the dictatorship of General Jorge Ubico (1931–44) the state’s

coercive and administrative apparatus was extended to more remote rural areas and increasingly also to the

private sphere.8

Populist mobilizations of subaltern populations by the state were conspicuously absent in Guatemala The

ten-year experiment in social democracy known as the ‘Guatemalan Spring’ (1944–54) did sanction the

mobilization of rural workers and peasants to advance a redistributive agrarian reform and created parallel

legal institutions to implement this However, this experiment was cut short by a United States-supported

military coup in 1954 and the subsequent rollback of the agrarian reform involved both the legal restitution

of expropriated lands and high levels of extra-judicial violence against peasant organizers and political

activists During the 1960s and 1970s the military consolidated their control over government, which was

increasingly organized according to a national security, counterinsurgency logic Levels of state violence

rose steadily, culminating in the genocidal campaigns against the indigenous rural populations in the early

1980s carried out under the military regime headed by General Ríos Montt.9 During the armed conflict the

judiciary was entirely subordinated to the military and disputes were resolved by parallel, extra-judicial

mechanisms with resort to extreme levels of violence.10 According to the Commission for Historical

Clarification (CEH), the United Nations-backed investigation into human rights violations that occurred

during the armed conflict, the singular failure of the judicial system to act as a check on the de facto

exercise of power and the systematic abuse of human rights by the state was a key factor that actively

facilitated the violence Some 200,000 people were killed, largely at the hands of military and paramilitary

forces.11 The military’s control over government also sharpened the authoritarian character of law and its

arbitrary application Civilian elites tended to rely on the military to mediate disputes, further weakening the

judicial apparatus However, following the transition to elected civilian government in 1985, citizen

demands for a more effective rule of law increased This was partly an effect of international phenomena, in

particular increased awareness of international human rights law and (latterly) international legislation on

the rights of indigenous peoples, and of the focus of the donor community in the 1990s on institutional

strengthening It was also an effect of rising levels of crime and insecurity

Since the signing of the peace accords in Guatemala in December 1996, ambitious initiatives supported

by a range of international donors have been undertaken to reform the country’s weak and ineffective

judicial system and improve access to justice for the majority of the population However, although

widespread changes to the institutional architecture of the legal system have been effected, impunity and

deep lack of citizen confidence continue to frustrate efforts to improve the rule of law The main body of

this study, then, examines judicial reform efforts in Guatemala since 1996 and considers their relationship with

attempts by citizens to secure ‘justice’ ‘from below’, ranging from efforts to secure prosecutions of those

accused of gross violations of human rights to summary executions of suspected petty criminals Any

analysis of attempts to promote the rule of law must examine what ‘law’, ‘rights’ and ‘justice’ mean for

different actors in different places and to analyse the interplay between broader dynamics of internationally

promoted judicial reform and national specificities Such an analysis may help to explain why, despite

unprecedented efforts to reform Guatemala’s justice system during the last five years, that system remains

weak and extra-legal forms of conflict resolution prevail

The peace settlement, which brought an end to 36 years of armed conflict, aimed to lay the foundations

for a democratic rule of law and transform an authoritarian, discriminatory and highly punitive legal

tradition It advocated the democratic modernization of the justice system, and particularly of the criminal

justice system, through institutional reform The stated aims were: first, to encourage the peaceful resolution

of conflicts via the courts; second, to secure the accountability of state officials and institutions; third, to

ensure respect for human rights and due process guarantees in the judicial process, and; fourth, to improve

access to justice for the majority of the population Such changes implied a fundamental overhaul of legal

culture: rather than simply a means to punish, it was hoped that the courts would come to be seen as a

means to secure accountability and restitution

Following the transition to elected civilian rule in 1985, important attempts were made in the early 1990s

to modernize the judiciary Nonetheless, at the end of the armed conflict it remained bereft of legitimacy in

the eyes of the majority of the population Most Guatemalans rightly tended to see the law as something

that operates to the benefit of powerful individuals and groups rather than as something to which they could

make effective recourse to protect their fundamental rights Opinion polls taken since the end of the armed

conflict repeatedly indicated extremely low levels of citizen confidence in the justice system.12 Most

analysts listed a catalogue of problems: the justice system was under-resourced, inefficient, inaccessible—

particularly to indigenous people, women, children and the poor, plagued by corruption, lacking

independence from other branches of state, staffed by poorly trained, mediocre and under-motivated

professionals, and subject to the de facto power of elite groups.

In addition to the historical legacy of citizen mistrust of the law, the justice system also faced the

challenge of an unprecedented crime wave in the wake of the peace settlement While violations of civil and

political rights by the state declined relative to the 1980s and early 1990s,13 new forms of insecurity became

generalized towards the end of the decade Armed robbery, car-theft, kidnapping,14 child abduction for

illegal adoption, drug trafficking, homicides and rape, gang-related violence and money laundering are now

common occurrences.15 Official figures are notoriously unreliable, but one recent study estimated that the total

number of reported crimes increased by 50 per cent between 1996 and 1998.16 Rising levels of crime

constitute a central challenge for the post-war justice system, hampering judicial reform efforts and

undermining citizen confidence in the legal system

Justice Reform and the Peace Accords

The peace agreement which dealt most comprehensively with reform of the justice sector was the

September 1996 Agreement for the Strengthening of Civilian Power and the Function of the Army in a

Democratic Society (hereinafter Agreement) but in total five of the 13 accords made express reference to the

justice sector The proposed changes built upon ongoing reforms of the justice system promoted by

domestic pro-reform constituencies and the different programmes supported by international donors The

donors include the World Bank, the Inter-American Development Bank (IDB), the United States Agency

for International Development (USAID) and the United Nations Development Programme (UNDP), which

focused on measures to increase judicial independence and strengthen due process guarantees.17 However,

as Pásara has observed, detailed proposals for change were principally drawn up by the UN; while key

domestic sectors identified the weaknesses of the justice system, few concrete proposals were advanced

through the peace negotiations.18 The peace accords underlined the need to ensure access to justice for

Guatemala’s majority indigenous population ‘Multiculturalizing’ the justice system was to involve such

initiatives as increasing the numbers of state defenders, providing judicial interpreters and encouraging the

use of indigenous customary law to resolve conflicts outside the courts The accords also mandated a

doubling of budget allocations to the justice sector between 1995 and 2000 and envisaged a massive

extension of its institutional coverage throughout the country In 1997 the multi-sector Commission for the

Strengthening of Justice was set up according to the terms of the September 1996 Agreement and subsequently

undertook a unique process of consultation on reform of the justice system with different civic and

professional groups throughout the country The Commission’s comprehensive and broad-ranging

recommendations, published in April 1998, included a series of measures to increase judicial independence

and reduce corruption, professionalize the judiciary, guarantee basic rights, increase access to justice and

make it more multicultural.19 Many of these recommendations were subsequently incorporated into the

judiciary’s five year Plan for Modernization (Plan de Modernización del Organismo Judicial), supported by

the World Bank and other donors and approved in mid-1997 Reform efforts advanced on a number of

fronts

Reform of Criminal Procedures

In common with other countries throughout Latin America, Guatemala reformed its Penal Procedures Code

(Código Procesal Penal or CPP) during the 1990s A new law entered into force in 1994 and a series of

amendments were subsequently approved by Congress in 1996, introducing a framework for criminal

justice based on ensuring due process and human rights guarantees for detainees, sometimes referred to as a

garantista model This emphasized the rights of the accused to due legal process, particularly the

presumption of innocence, habeas corpus guarantees and the right to legal defence To this end the code

mandated the creation of an autonomous public defenders service (Instituto de la Defensa Pública) to

protect the constitutional rights of all citizens to legal representation It also separated the roles of

investigation, prosecution and adjudication: the task of criminal investigation and preparing a case for

prosecution was assigned exclusively to the public prosecutor’s office or Public Ministry (Ministerio

Público, MP) Court proceedings themselves were revolutionized Previously trials had been secretive,

written and formalistic affairs where the accused was often not aware of the charges laid against them until

the sentencing stage: the CPP introduced public, oral proceedings It also established the legal right to be

heard in one’s own language in a court of law, considered an important symbolic step in improving

indigenous access to justice Another significant change introduced by the CPP was that other civic actors

were allowed to take part in criminal cases; for example relatives of victims and non-governmental

organizations (NGOs), some of who subsequently became co-plaintiffs (querellantes adhesivos) in key human

rights cases (see below) However, although it is a significant advance, the implementation of the CPP

remains uneven: many judges, public prosecutors and defenders still lacking training in its usage, despite

significant resources devoted by international donors to such ends; others are simply reluctant to implement

the innovations mandated by the new legislation The new code also had contradictory effects: in the face of

the post-war crime wave the rights protection afforded to detainees by the garantista model became the

subject of acute public criticism, with calls for more hard line measures and revisions to the code

increasingly gaining ground

Access to Justice

Since 1996 a marked improvement in access to justice has occurred, with a series of measures aimed

particularly at the majority indigenous population International institutions and donors, including USAID,

the European Union and the UN’s verification mission MINUGUA, have supported many of these

initiatives They include: (1) an increase in the coverage of the courts throughout the national territory; (2)

the training of bilingual interpreters; (3) the creation of the public defenders service, and; (4) the greater use

of mediation and alternative dispute resolution (ADR) at local community level

In total, some 102 new courts were established after 1996, together with 35 posts for legal interpreters

Offices of Justices of the Peace (juzgados de paz), which covered only two thirds of the national territory at

the end of the armed conflict, are now present in all 331 of Guatemala’s municipalities, as recommended by

the Commission for Strengthening Justice in 1998, and each departmental capital now has specialized

criminal, civil, family and labour tribunals.20 Reforms to the penal code in 2002 mean that justices of the

peace can now try crimes punishable by prison terms of up to five years MINUGUA and USAID have

supported important initiatives to train bilingual interpreters for the courts, yet despite this the coverage of

interpreters remain highly deficient, as does the coverage and performance of the public defenders’

service.21 A number of initiatives to promote non-judicial forms of conflict resolution were advanced In

September 1997 Congress passed a series of amendments to the CPP, which aimed to promote greater use

of conciliation and mediation and by 2001 the Supreme Court had inaugurated 18 mediation centres

throughout the country, with USAID’s justice programme supporting the creation of a further 15

community mediation centres.22 The original proposal recognized indigenous peoples’ right to exercise

their customary law, as mandated in the 1995 Accord on the Rights and Identity of Indigenous Peoples and

the International Labour Organization’s (ILO) Convention 169, ratified by Guatemala in 1995 Yet in the

event congressional deputies vetoed this clause, viewing the granting of greater legal and political autonomy

to indigenous peoples as a potentially dangerous concession Instead a new form of ‘community court’

(juzgado de paz comunitario or tribunal comunitario) was introduced Rather than recognizing existing

community-level institutions and practices for dispute resolution, what this measure in effect did was to

superimpose a new, officially sanctioned form of ‘community court’ in a handful of indigenous

municipalities with little consultation with local inhabitants.23 Nonetheless, despite their inauspicious

beginnings these pilot courts had some success in providing greater access to more culturally accessible,

bilingual conflict resolution, in some places co-ordinating their efforts with traditional and municipal local

authorities providing different kinds of mediation services However, the rejection of recognition of

indigenous peoples’ right to use customary law in the constitutional referendum of March 199924 effectively

meant that local community conflict resolution procedures which fall outside of the limits set down in the

CPP are not recognized by the courts.25

Failing Justice

Multiple donors were involved in justice reform, including the World Bank, the IDB, USAID, the UNDP,

MINUGUA, the Organization of American States (OAS), the US Department of Justice, the European

Union and numerous bilateral donors A massive influx of aid to Guatemala occurred after 1996 and much

of it was targeted at the justice sector, donations and loans between 1996 and 2001 totalling over US$188

million according to one assessment.26 Yet while the coverage of the state justice system throughout the

country undoubtedly improved after December 1996, the overall quality of justice did not Every

municipality in the country now boasts an Office of Justice of the Peace and a police station or sub-station,

meaning the justice system is tangibly nearer to people than ever before Such changes, together with the

more generalized effects of the peace process, raised the expectations of ordinary citizens that the state

would enforce the rule of law In addition, the rise in crime and insecurity throughout the country led to

ever-greater demands that the justice system provide an effective response Yet these heightened

expectations and demands far outstripped the ability and disposition of the judicial authorities to meet them,

leading, in turn, to growing popular frustration and worryingly high levels of public tolerance for

extra-judicial actions against suspected criminals (see below) Institutional weaknesses persist and impunity

continues Guatemalan judicial culture continues to be marked by inefficiency, bureaucracy, insufficient

training of staff, routine violation of due process guarantees and a lack of commitment to the rule of law as

a democratic resource for all citizens, irrespective of their gender, ethnicity or class A number of factors

should be noted

Judicial Independence

The independence of the judiciary from the executive was greatly increased by the 1985 Constitution,

article 215 of which established a process for selection of the Supreme Court which reduced the ability of

the executive to pack the court Nominations to the court and appellate courts are proposed by a 16 member

commission, which includes five jurists selected by the Guatemalan Bar Association, five representatives

from the appeals courts, five law professors and one university rector Nominations are subsequently

confirmed by Congress Supreme Court justices are appointed for five-year terms which do not overlap with

the presidential term of office, reducing the possibilities for presidents to appoint loyalists Court justices

also select the Chief Justice The magistrates of the Constitutional Court, created by the 1985 Constitution,

are selected by the Supreme Court, Congress, the executive, the national university, and the lawyers’

association The magistrates hold office for five years and the presidency of the court rotates between them

on a yearly basis The Constitutional Court played a vital role in halting President Jorge Serrano’s attempts

to dismiss Congress and the Supreme Court in May 1993, in an executive coup similar to that successfully

executed by Peru’s President Fujimori in 1992 The court has also twice blocked attempts by former

dictator Ríos Montt to run for the presidency, upholding article 186 of the 1985 Constitution which

prohibits former coup leaders and their relatives from running for presidential office However, in a highly

controversial move in July 2003 the Constitutional Court overturned this ruling Following conflict between

the court and the executive in 2000 and 2001,27 the ruling Frente Republicano Guatemalteco (FRG)

assiduously pursued a strategy of securing the appointment of party sympathizers to the Constitutional Court

Despite the fact that both the Supreme Electoral Tribunal and the Supreme Court voted in 2003 to uphold

Article 186, four Constitutional Court magistrates voted against three to allow the former dictator to stand

for presidential office, sparking a judicial and political crisis

As a consequence of the peace process a number of initiatives were introduced to improve the

independence of the lower ranks of the judiciary In October 1999 a law was passed to regulate the training

of judges (Ley de Carrera Judicial) Together with the creation of a Council of Judicial Training (Consejo

de Carrera Judicial), a disciplinary body for judges (Junta de Disciplina Judicial), and the approval of a

Code of Judicial Ethics, this aims to ensure that incompetent and corrupt judges no longer fill the ranks of

the judiciary.28 Yet despite these institutional advances, judicial training is poor, selection and appointment

by merit is still not generalized practice and the tendency to make appointments on the basis of clientelism

or nepotism persists Neither periodic purges of incompetent or corrupt personnel nor improved training and

institutional reform have proved sufficient to secure meaningful improvements in judicial performance and

credibility The vulnerability of judges, lawyers and public prosecutors to internal and external intimidation,

interference and corruption explains much of the weakness of the judicial system Powers to promote,

discipline or dismiss judges and public prosecutors are concentrated in the Supreme Court In one recent

study some 25 per cent of judges interviewed and 87 per cent of public prosecutors acknowledged they had

been the target of pressure either from their superiors or interested parties to alter the course of

investigations and cases.29 Low salaries and poor training also foment corruption Disciplinary procedures

remain inadequate and officials charged with malfeasance rarely face criminal prosecution A section of the

Public Ministry was created in April 2000 to deal with charges of official corruption By August 2001 over

2,200 complaints had been received, but charges were filed in only 13 cases and a mere two convictions

secured.30 In addition to bribery, justice officials are also subject to intimidation; constant harassment and

threats mean that many are scared to testify, investigate or judge impartially A new office set up within the

Public Ministry in 2001 to deal specifically with threats against justice sector workers (Fiscalía de

Amenazas) had accumulated a case load of 55 within two months of its inauguration.31 One NGO

documented 158 cases of threats, intimidation and attacks against judges, prosecutors, lawyers and others